Protecting wetlands impacted by the Mpumalanga coal mining … · 2018-12-11 · Mpumalanga coal...

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Protecting wetlands impacted by the Mpumalanga coal mining industry: a

legal analysis

J Hayes

23363932

M.Sc. Environmental Management

Dissertation submitted in fulfillment of the requirements for the degree Magister Philosophy in Environmental Law and

Governance at the Potchefstroom Campus of the North-West

University

Supervisor: Prof W du Plessis (NWU)

November 2016

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ACKNOWLEDGEMENTS

Prof Willemien du Plessis For the guidance and encouragement in

the completion of this mini-dissertation, as

well as her insight and understanding of

the vision thereof.

My colleagues at Anglo American Coal

South Africa

For the resources, time and support given

to me throughout this mini-dissertation.

My parents, Jan and Elna For all the opportunities they have given

me, their love, support and prayers.

My husband, Brian For his endless support and technical

insight.

My son, Ruben For his unconditional love.

My Lord Jesus Christ Who provided me with good health and

strength of mind to complete this mini-

dissertation, and a passion for the

protection of His creation.

Then God said, "Let us make man in our image, after our likeness. And let them

have dominion over the fish of the sea and over the birds of the heavens and over

the livestock and over all the earth and over every creeping thing that creeps on

the earth." - Genesis 1:26

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ABSTRACT

Wetlands are seen as one of the most vulnerable ecosystems globally. The protection of

wetlands has received increased focus in the South African environmental legal domain

in reaction to the realisation that these ecological systems have a progressively more

important function in the maintenance of ecologies. Mining is a "landscape-changing"

activity with unique impacts on environments such as wetlands, and requires specific

regulation of the impact thereof on these ecosystems.

Within the Mpumalanga Province, coal mining is associated with specific geological

features that are inherently linked to the occurrence of wetlands. Current mining in or

near wetlands would primarily require authorisation under two acts, namely the National

Water Act 36 of 1998 and the National Environmental Management Act 107 of 1998. The

environmental legal framework prior to 1998 was fragmented in that several acts set

different objectives under different government departments for the protection of

wetlands. Several mines in the Mpumalanga Province commenced prior to the

introduction of these acts and the requirement to obtain an authorisation for mining in or

near wetlands. Changing legislation over the life of the mine results in uncertainty about

the applicability of the legislation to the mining activities.

The current legislation governing the protection of wetlands is centred on the restriction

of development in or near wetlands by way of defining the term "wetland" and buffer

zones for regulation. The challenge with governing the protection of wetlands is that the

definition of "wetland" as contained in the various pieces of legislation is not uniform.

The references to buffer zones in the legislation (500 meters, 100 meters and 32 meters)

are also inconsistent, with no scientific basis on how these buffer zones should be

delineated and whether the defined buffer zones are indeed effective in the protection of

wetlands. The vagueness of the interpretation of what is meant by "wetland" and "buffer

zone", coupled with changes in the legislation over the life of a mine, results in

inconsistencies in wetland delineation and the incorrect application of buffer zones by the

regulating authority.

The definition of a "wetland" should therefore be reviewed, based on a scientific

understanding of such areas, so that it is uniform in all legislation governing their

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protection. The delineation of buffer zones, too, should be revisited, so that it is scientific

rather than arbitrary. Legislative requirements should be clear on the authorisations

required for mining activities to commence and continue within the buffer zones defined.

The implementation of a scientific-based tool to replace the arbitrary buffer included in

the South Africa legislative framework would ensure better protection of wetlands.

Key words: environmental legal framework, South Africa, Mpumalanga, protection of

wetlands, coal mining industry.

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OPSOMMING

Vleilande word as een van die mees kwesbare ekosisteme wệreldwyd geag. Daar word

meer fokus op die beskerming van vleilande in die Suid Afrikaanse omgewingsreg

geplaas. Die rede hiervoor is dat dié ekologiese stelsels ‘n al meer belangriker funksie in

die handhawing van ekologiese funksie het. Mynbou is 'n "landskap-veranderende"

aktiwiteit met 'n unieke impak op aspekte van die omgewing soos vleilande, wat

spesifieke regulering van die impak daarvan op hierdie ekosisteme vereis.

In die provinsie van Mpumalanga word steenkoolmynbou met spesifieke geologiese

kenmerke wat inherent gekoppel is aan die voorkoms van vleilande geassosieer. Huidige

mynbou in of naby vleilande vereis magtiging onder hoofsaaklik twee wette, naamlik die

Nasionale Water Wet 36 van 1998 en die Nasionale Wet op Omgewingsbestuur 107 van

1998. Die wetlike omgewingsraamwerk voor 1998 was gefragmenteerd, deurdat verskeie

wette verskillende doelstellings onder verskillende staatsdepartemente vir die beskerming

van vleilande gestel het. Verskeie myne in Mpumalanga het voor die inwerkingtreding

van hierdie wette en die vereiste om 'n magtiging vir mynbou in of naby vleilande te kry,

begin. Die wysigings aan wetgewing gedurende die lewenstydperk van die myne het tot

onsekerheid oor die toepassing van die wetgewing op die impak van die mynbou

aktiwiteite op vleilande gelei.

Die huidige wetgewing ten opsigte van die beskerming van vleilande is toegespits op die

beperking van ontwikkeling in of naby vleilande deur die terme "vleiland" en "buffersones"

te definieer. Die uitdaging met die beskerming van vleilande is dat die definisie van

"vleiland" soos vervat in die verskeie stukke wetgewing nie eenvorming is nie. Die

verwysing na buffersones in die wetgewing (500 meter, 100 meter en 32 meter) is ook

teenstrydig met mekaar en het geen wetenskaplike basis van hoe hierdie buffersones

afgebaken is nie. Die vraag kan gestel word of die gedefinieerde buffersones inderdaad

effektief is om die beskerming van vleilande te verseker. Teenstrydighede in

vleilandafbakening en die verkeerde toepassing van buffersones deur die

staatsdepartemente word veroorsaak deur die verskillende interpretasies van die term

"vleiland" en "buffersones" asook die wysigings aan wetgewing gedurende die

lewenstydperk van ‘n myn.

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Die definisie van "vleiland" moet hersien word om ‘n eenvormige definisie in al die

wetgewing wat handel oor die beskerming van vleilande op te neem. Die hersiening moet

op wetenskaplike beginsels gebaseer wees. Buffersones moet ook hersien word om

wetenskaplike afbakening in te sluit en daar moet nie op arbitrệre lyne staat gemaak

word nie. Wetlike vereistes moet duidelik uiteen sit watter magtigings nodig is vir mynbou

aktiwiteite om te begin en voort te gaan binne die buffersones soos gedefinieer. Die

implementering van ‘n wetenskaplik gebaseerde instrument om die arbitrệre buffers soos

in die Suid Afrikaanse wetgewing te vervang, sal verseker dat vleilande beter beskerming

geniet.

Sleutelwoorde: omgewingsregsraamwerk, Suid-Afrika, Mpumalanga, beskerming van

vleilande, steenkoolmynboubedryf.

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LIST OF CONTENTS

ACKNOWLEDGEMENTS .............................................................................................. ii

ABSTRACT ................................................................................................................... iii

opsomming ................................................................................................................... v

List of contents ........................................................................................................... vii

LIST OF ABBREVIATIONS .......................................................................................... xi

LIST OF FIGURES ...................................................................................................... xiv

List of Tables .............................................................................................................. xv

Chapter 1 Introduction ................................................................................................. 1

1.1 Background ............................................................................................. 1

Chapter 2 Defining wetlands ....................................................................................... 6

2.1 Introduction ............................................................................................. 6

2.2 Wetlands: the global and local concern ................................................ 6

Wetland functions ...................................................................................... 9

2.3 Wetlands in the coal mining industry in Mpumalanga ....................... 11

2.4 The legal definition/s of wetlands ........................................................ 19

Watercourse and wetland extent and buffers .......................................... 23

Wetland types .......................................................................................... 27

Wetland delineation ................................................................................. 29

2.5 Conclusion ............................................................................................. 30

Chapter 3 Legislative framework governing wetlands ............................................ 34

3.1 Introduction ........................................................................................... 34

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3.2 Constitution of the Republic of South Africa, 1996 ............................ 36

3.3 Pre-1998 ................................................................................................. 38

International law ...................................................................................... 39

Sector-specific legislation ........................................................................ 40

Media-specific legislation......................................................................... 42

3.3.3.1 Environmental legislation ......................................................................... 42

3.3.3.2 Water legislation ...................................................................................... 43

3.4 Between 1998 and 2014 ........................................................................ 46





3.5 Post-2014 ............................................................................................... 60





3.6 Conclusion ............................................................................................. 67

Chapter 4 application of legislation for the protection of wetlands in

Mpumalanga .............................................................................................. 70

4.1 Introduction ........................................................................................... 70

4.2 Mining underneath wetlands ................................................................ 73

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4.3 Opencast mining through and in close proximity to wetlands ......... 74

4.4 Location of mining-related infrastructure within and in close

proximity to wetlands............................................................................ 75

4.5 Pre-1998 ................................................................................................. 75

4.5.1. Brownfields application ................................................................. 75

4.5.1.1 Scenario 1: Underground coal mine......................................................... 75

4.5.1.2 Scenario 2: Opencast coal mine............................................................... 77

4.6 Between 1998 and 2014 ........................................................................ 78

Scenario 3: Underground coal mine ........................................................ 78

Scenario 4: Opencast coal mine .............................................................. 81

Scenario 5: Opencast coal mine .............................................................. 84

4.7 Post-2014 ............................................................................................... 84

4.7.1. Greenfield application .................................................................... 84

4.7.1.1 Scenario 1: Underground coal mine......................................................... 84

4.7.1.2 Scenario 2: Opencast coal mine............................................................... 88

Brownfield application.............................................................................. 90

4.7.2.1 Scenario 3: Opencast/ underground coal mine prospecting .................... 90

4.7.2.2 Scenario 4: Opencast/ underground coal mine geohydrological

drilling ...................................................................................................... 92

4.7.2.3 Scenario 5: Mine-related infrastructure ................................................... 92

4.8 Conclusion ............................................................................................. 95

Chapter 5 Conclusion............................................................................................... 105

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5.1 Introduction ......................................................................................... 105

5.2 Defining the challenges related to the term "wetland" .................... 105

5.3 "Boundaries" set by the definition of wetlands ................................ 107

5.4 Un/effective legislative framework?................................................... 109

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LIST OF ABBREVIATIONS

AMD Acid mine drainage

CARA Conservation of Agricultural Resources Act 43 of 1983

CMA Catchment Management Agency

CSIR Council for Scientific and Industrial Research

DEA Department of Environmental Affairs

DMR Department of Mineral Resources

DWS Department of Water and Sanitation

ECA Environmental Conservation Act 73 of 1989

EIA Environmental Impact Assessment

EIS Ecological Importance and Sensitivity (EIS)

ELWU Existing Lawful Water Use

EMP Environmental Management Programme

EMPr Environmental Management Programme Report

FEPA Freshwater Ecosystem Priority Areas

GG Government Gazette

GN General Notice

HGM Hydromorphic

IUCN International Union for the Conservation of Nature

JOEL Journal of Environmental Law

LEAD Law Environment and Development Journal

MEC Member of Executive Council

MPRDA Mineral and Petroleum Resources Development Act 28 of 2002

MPRD Mineral and Petroleum Resources Development

NFEPA National Freshwater Ecosystem Priority Areas

NEMA National Environmental Management Act 107 of 1998

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NEMAA National Environmental Management Act 62 of 2008

NEMICMA National Environmental Management Integrated Coastal Management Act 24 of 2008.

NEMLAA National Environmental Management Laws Amendment Act 25 of 2014

NPV Net Present Value

NWA National Water Act 36 of 1998

NWCS National Wetland Classification System

NWM4 National Wetland Map

NWRS National Water Resource Strategy

OES One Environmental System

PER Potchefstroom Electronic Journal

PES Present Ecological Status

REC Recommended Ecological Category

RECIEL Review of European, Comparative and International Environmental Law

RDMs Resource-Directed Measures

RQOs Resource Quality Objectives

SAIAB South African Institute of Aquatic Biodiversity

SABI South African Business Integrator

SACMA South African Colliery Managers' Association

SAJHR South African Journal of Human Rights

SAJELP South African Journal of Environmental Law and Policy

SANBI South Africa National Biodiversity Institute

SANParks South African National Parks

SDCs Source-Directed Controls

SI Socio-cultural Importance

SWMM5 Storm Water Management Model

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SWSAs Strategic Water Source Areas

UORC Upper Olifants River Catchment

WRC Water Research Commission

WWF Worldwide Fund for Nature

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LIST OF FIGURES

Figure 1: Wetland Extent Index ...................................................................................... 7

Figure 2: National wetland map ...................................................................................... 9

Figure 3: Areas sensitive to Mining ............................................................................... 14

Figure 4: Summary table of potential impacts from mining on water resources............ 19

Figure 5: Illustration of the regulated area or extent of a watercourse. ......................... 24

Figure 6: Illustration of the extent of a watercourse and its related buffers. .................. 26

Figure 7: Scenarios ...................................................................................................... 71

Figure 8: Water ingress paths for (a) shallow reef (coal) mining................................... 74

Figure 9: Map indicating future underground mining in relation to wetlands. ................ 85

Figure 10: Map indicating a proposed opencast footprint overlain on the delineated

wetland areas ...................................................................................... 90

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LIST OF TABLES

Table 1: South African Ramsar Wetland Sites ........................................................ 8

Table 2: Key ecological infrastructure allocated to mining nationally and in

Mpumalanga ............................................................................. 14

Table 3: Summary of definitions of wetlands ........................................................ 30

Table 4: Summary of the legislation for the protection of wetlands .......................... 68

Table 5: Summary of the legislation and the application thereof for the protection

of wetlands within the coal mining industry in Mpumalanga.............. 96

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CHAPTER 1 INTRODUCTION

1.1 Background

Sensitive ecosystems such as wetlands require specific attention in management and planning procedures, especially where they are subject to significant human

resource usage and development pressure.1

A "wetland" is defined in the National Water Act 36 of 1998 (hereafter NWA) as "the land

transitional between terrestrial and aquatic systems."2 Recently, increased focus has been

placed on the protection of wetlands as these ecological systems have an increasingly

important function in the maintenance of the ecosystems.3 The law regulating wetlands

can be divided into three broad categories namely (a) restrictions on locality and related

facilities, (b) permitting water uses and (c) development in or near wetlands and the

protection of wetlands, as elaborated below.

GN R704 of 19994 is the primary regulatory instrument that places a restriction on the

location of mining and related activities in or near wetlands. Regulation 45 states that if

an activity is located within a 100 meters buffer from the edge of a wetland, an exemption

from these regulations is required. Mining in or near wetlands would primarily require

authorisation under two acts, namely the NWA and the National Environmental

Management Act 107 of 1998 (hereafter NEMA). As per Schedule 1 of the NWA, water

may be used only if it is a continuation of an existing lawful use, if it is authorised in

terms of a General Authorisation, or in terms of a licence. Section 21(c) and (i) of the

NWA provides that a water use licence is required for activities that impact negatively on

a watercourse through "impeding and diverting the flow of water in a watercourse" or

"alteration of the beds, banks, course or characteristic of a watercourse." The definition

of "watercourse" is:

(a) a river or spring, (b) a natural channel in which water flows regularly or intermittently, (c) a wetland, lake or dam into which, or from which, water flows

1 Kidd Environmental Law 136 and section 2 of National Environmental Management Act 107 of 1998 (hereafter NEMA).

2 Section 1 of National Water Act 36 of 1998 (hereafter NWA). 3 Government Communication and Information System 2015 http://www.sanews.gov.za/south-

africa/sa-urged-preserve-wetlands. 4 GN R704 in GG 20199 of 4 June 1999 (hereafter GN R704) issued under section 26(1)(b), (g) and (i)

of the NWA. 5 Reg 4 in GN R704.

http://www.sanews.gov.za/south-africa/sa-urged-preserve-wetlands


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and (d) any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse, and a reference to a watercourse includes, where relevant, its bed and banks.6

The definitions of an "ecosystem", "watercourse" and "wetland" as included in section 1

of the NWA are all inter-linked and may create confusion when authorisations are to be

issued.7

A General Authorisation allows for water uses to be undertaken without a licence if the

use complies with the terms and conditions of the General Authorisation. In 2009 a

General Authorisation (GN R11998) for sections 21(c) and (i) water uses was published.

GN R1199, however, excludes activities that occur within 500 meters of the boundary of

a wetland. A challenge to the coal mining industry at present is that the General

Authorisation is interpreted to mean that no activities impeding and diverting the flow of

water in a wetland or altering the characteristics of a wetland may not occur within the

500 meter buffer zone. This interpretation seems to be flawed, as the interpretation of

the 2009 General Authorisation implies that if an activity undertaken within the 500 meter

buffer, whether such activity impedes, diverts or alters the wetland, a water use licence

should be obtained, and that an applicant cannot rely on the General Authorisation. On

26 August 2016 the Department of Water and Sanitation (hereafter the DWS) published

an amendment to GN R1199 to address this challenge.9

The Environmental Impact Assessment Regulations10 (read with section 24 of the NEMA)

further list activities impacting on wetlands for which an environmental authorisation is

required.11 An environmental authorisation is required for a development within a

6 Section 1 of the NWA. 7 Refer to Chapter 2 section 2.4. 8 GN R1199 in GG 32805 of 18 December 2009 (hereafter GN R1199) issued under section 39(1) of

the NWA. 9 GN R509 in GG 40229 of 26 August 2016 (hereafter GN R509). Subsequent to the finalisation of this

dissertation GN R1199 was amended by GN R509. GN R509 includes the same exclusion in 3(b), which states that: "This General Authorisation does not apply to the use of water in terms of section 21(c) and (i) of the Act within the regulated area of a watercourse." The regulated area of a watercourse is defined in regulation 2 as "a 500 meter radius from the delineation boundary (extent) of any wetland or pan." The amended General Authorisation, however, in regulation 3(b) adds "where the Risk Class is medium or high as determined by the Risk Matrix (appendix A)." Thus where GN R1199 excluded all activities within the 500 meter radius of the boundary of a wetland from the General Authorisation, the amended GN R509 excludes only medium to high risk activities. Or, differently stated, low risk activities within the 500 meter radius from the boundary of a wetland do not require a section 21(c) and (i) water use provided that the water use is within the requirements of the General Authorisation.

10 GN R983-985 in GG 38282 of 4 December 2014 issued under sections 24(5) and 44 of the NEMA. 11 Sandham et al 2008 Water SA 155.

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watercourse as well as a development within 32 meters of a watercourse, where no

development setback line exists (such as mining areas).12 The definition of a

"watercourse" includes a "wetland."13

In the Mpumalanga Province, coal mining areas are associated with certain geological

features that are intrinsically linked to the occurrence of wetlands.14 Most of the mining

areas are therefore located within the above-mentioned buffer zones, leaving few areas

that can be mined without obtaining onerous authorisations that do not necessarily result

in the protection of the wetlands.15

Impacts on wetlands were not regulated when the planning of several mines in

Mpumalanga commenced and advanced, as this was done prior the introduction of the

NWA in 1998 and the Mineral and Petroleum Resources Development Act 28 of 2002 in

2004 (hereafter MPRDA). At the time the only environmental requirement for mining

activities to commence was an approved Environmental Management Programme under

the Minerals Act 50 of 1991 (hereafter Minerals Act). The Minerals Act did not refer to

wetlands. The requirement post-1998 to obtain an authorisation for mining in or near

wetlands has therefore impacted on mine and financial planning, as areas that could

previously be mined now require an authorisation. The current legislation is still unclear

on how the impacts on wetlands should be regulated. It is of great concern that legislation

defines buffer zones for regulation, but suggests no scientific basis on how these buffer

zones should be delineated and whether the defined buffer zones are indeed effective in

the protection of wetlands. This concern is illustrated by the inconsistency in the

references to buffer zones found in the various relevant laws (500 meters, 100 meters

and 32 meters). Of further concern is the difference in interpretation of the definition of

12 Item 12 and 19 of GN R983 in GG 38282 of 4 December 2014 (hereafter GN R983). 13 Regulation 2 of GN R983 defines a "watercourse" as "a river or spring; a natural channel in which

water flows regularly or intermittently; a wetland, pan, lake or dam into which or from which, water flows, and any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse as defined in the NWA, 1998" (emphasis added); and a reference to a watercourse includes, where relevant, its bed and banks and "wetland" means "land transitional between terrestrial and aquatic systems where the water table is usually at or near the surface, or the land is periodically covered with shallow water, and which land in normal circumstances supports or would support vegetation typically adapted to life in saturated soil."

14 Exarro date unknown http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/. 15 See chapter 2.4.1.

http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/

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a wetland, which results in inconsistencies in wetland delineation and the incorrect

application of buffer zones by the different regulating authorities.16

The aim of this study is therefore to determine whether the current legal framework

guarantees the protection of the wetlands situated within the coal mining area in

Mpumalanga.

To support the main aim, supportive aims are identified, namely:

1. To determine the legal definition of the term "wetland";

2. To evaluate the South African environmental legal framework governing wetlands;

3. To determine the practical application of the South African environmental legal

framework governing wetlands in the context of various scenarios evident in the

Mpumalanga coal fields; and

4. To determine, based on the above scenario analysis, if the South African

environmental legal framework sufficiently protects wetlands within the

Mpumalanga coal fields.

This study is based on a literature study of primary sources such as policies and

legislation. The NWA, MPRDA and the NEMA and their regulations and guidelines are

analysed as primary sources. The primary sources are supported by a survey of secondary

sources such as text books, journals and electronic sources.17 In order to achieve the aim

of the study the analysis of the primary and secondary sources will be applied to

hypothetical scenarios encountered in the coal mining industry in Mpumalanga and

adapted for this study. The hypothetical scenarios will include both greenfield and

brownfield project applications. A greenfield application is "denoting or relating to

previously undeveloped sites" for mining development.18 A brownfield application is

16 Department of Water and Sanitation 2016 Section 21(c) and (i) water use training. 17 The literature study ended June 2016. Subsequent amendments are referred to but could, due to time

constraints not be included in the study. 18 Oxford University Press 2016 http://www.oxforddictionaries.com/definition/english/greenfield.

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denoting or relating to sites for potential mining development that have had previous

mining development on them.19

In this study the term "wetland" will firstly be defined (see Chapter 2), where after the

South Africa environmental legal framework governing the protection of wetlands will be

evaluated (see Chapter 3). In order to be able to come to a conclusion and to make

recommendations (see Chapter 5), the environmental legal framework will be applied to

practical scenarios evident in the Mpumalanga coal fields (see Chapter 4).

19 Oxford University Press 2016 http://www.oxforddictionaries.com/definition/english/brownfield.

http://www.oxforddictionaries.com/definition/english/brownfield

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CHAPTER 2 DEFINING WETLANDS

2.1 Introduction

Water is one of South Africa’s most limited resources, constraining our future social and economic development. Its wise use is critical to the sustainable

development of our emerging economy and the wellbeing of all our citizens, particularly the poorest, who depend directly on the health of natural resources for their livelihoods.20

As with all South African resources, water and specifically wetlands are regulated by

particular legislation to ensure the protection, conservation and rehabilitation thereof.21

The current environmental governance system is fragmented, as is evident in the

numerous acts regulating environmental issues.22 Therefore it is important to analyse

the various definitions contained in environmental legislation that directly and indirectly

refer to wetlands. This chapter will firstly evaluate the state of global and South African

wetlands. A distinction will be made between the scientific and legal definitions of

wetlands and the various wetland types. The chapter will conclude with a review of the

regulated area (extent or buffer) of a wetland and the manner in which wetlands are

delineated to determine the extent thereof.

2.2 Wetlands: the global and local concern

Wetlands are seen as one the most vulnerable ecosystems globally and have been

identified in 1980 by the International Union for the Conservation of Nature (hereafter

IUCN) as the third most vital life support system.23 According to scientific estimates 64%

of global wetlands have disappeared since 1900, with inland wetlands being more

20 Water Research Commission 2011 Implementation Manual for Freshwater Ecosystem Priority Areas 3.

21 Govender-Ragubeer The challenge of protecting urban wetlands from destruction: a case study of the Libradene wetland, Boksburg, Gauteng 50.

22 Kotzé 2006 PER 1. Acts include NEMA, NWA, the National Environmental Management Air Quality Act 39 of 2004, National Environmental Management Biodiversity Act 10 of 2004, National Environmental Management Integrated Coastal Management Act 24 of 2008, National Environmental Management Protected Areas Act 57 of 2003 (hereafter NEMPAA) and National Environmental Management Waste Act 59 of 2008.

23 Linstrom and Emery "Wetlands" 26. The International Union for the Conservation of Nature 1980 indicates that "Today, the most important and most threatened life-support systems are agricultural systems, forests, and coastal and freshwater systems" (emphasis added).

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affected than coastal wetlands.24 The Wetlands Extent Index provides an indication of

the loss of wetlands and measures the decrease in a global sample of more than a

thousand wetland sites between 1970 and 2008. As seen in Figure 1, an average decrease

of 40% was noted between the periods specified.25 According to the Ramsar Convention

on Wetlands of International Importance (1971) (hereafter the Ramsar Convention), the

major causes of the decrease in global wetlands can be attributed to major changes in

land use, water diversion through dams, dikes and canalisation, infrastructure

development and air and water pollution.26

Figure 1: Wetland Extent Index27

Wetlands make up 2.4% of South Africa’s surface area but provide an excessively high

value of "ecological infrastructure" that provides critical ecosystem services.28 Figure 2

24 Ramsar 2014 http://www.ramsar.org/sites/default/files/documents/library/factsheet3_global_disappearing_act_0.pdf.




28 Department of Environmental Affairs 2016 https://www.environment.gov.za/world_wetlands_day_commemorated_under_theme_wetlands_our_future_sustainable_livelihoods.

http://www.ramsar.org/sites/default/files/documents/library/factsheet3_global_disappearing_act_0.pdf








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illustrates the distribution of wetlands in South Africa. Table 1 lists South Africa’s Ramsar-

protected wetlands. However, Ramsar wetland sites are not regarded as protected areas

in South African law29 and many wetlands are found on privately owned land. Some

landowners do not know the benefits of these wetlands, resulting in threats to these

systems.30

Table 1: South African Ramsar Wetland Sites31

RAMSAR SITE DATE PROVINCE EXTENT

Barberspan 12/03/75 North-West 3118Ha

Blesbokspruit M R 02/10/86 Gauteng 1858Ha

De Hoop Vlei 12/03/75 Western Cape 740Ha

De Mond (Heuningnes Estuary) 02/10/86 Western Cape 918Ha

False Bay Nature Reserve 02/02/15 Western Cape 1542Ha

Kosi Bay 28/06/91 Kwazulu/Natal 10982Ha

Lake Sibaya 28/06/91 Kwazulu/Natal 7750Ha

Langebaan 25/04/88 Western Cape 6000Ha

Makuleke Wetlands 22/05/07 Limpopo 7757Ha

Natal Drakensberg Park 21/01/97 Kwazulu/Natal 242813Ha

Ndumo Game Reserve 21/01/97 Kwazulu/Natal 10117Ha

Ntsikeni Nature Reserve 02/02/10 Kwazulu/Natal 9200Ha

Nylsvley Nature Reserve 07/07/98 Northern Province 3970Ha

Orange River Mouth M R 28/06/91 Northern Cape 2000Ha

Prince Edward Islands 22/05/07 Western Cape 37500Ha

St. Lucia System 02/10/86 Kwazulu/Natal 155500Ha

Seekoeivlei Nature Reserve 21/01/97 Free State 4754Ha

Turtle Beaches/Coral Reefs of Tongaland

02/10/86 Kwazulu/Natal 39500Ha

uMgeni Vlei Nature Reserve 19/03/13 Kwazulu/Natal 958Ha

Verloren Vlei Nature Reserve 16/10/01 Mpumalanga 5891Ha

Verlorenvlei 28/06/91 Western Cape 1500Ha

29 NEMPAA and Netshithothole "Integration of Ramsar principles within National Policies and Strategies."

30 Kidd Environmental law 136. 31 Ramsar 2016 http://www.ramsar.org/sites/default/files/documents/library/sitelist.pdf.

http://www.ramsar.org/sites/default/files/documents/library/sitelist.pdf

9

Wilderness Lakes 28/06/91 Western Cape 1300Ha

Figure 2: National wetland map32

Wetland functions

Wetlands, as a watercourse type, are particularly singled out due to their being among

the most diverse and productive ecosystems and because they are vital to human

survival. The protection of wetlands is critical as they provide certain important

functions.33 Some wetland functions include: "storage of water, transformation of

nutrients, growth of living matter, diversity of wetland plants, and value from the

surrounding ecosystems and for people."34 Wetlands reduce and transform the nutrients

and metals generated by industrial and agricultural activities and also act as nutrient

(nitrogen and phosphorus) traps. "Wetlands can remove 15% to 32% of heavy metals as

32 ArcGIS 2016 https://www.arcgis.com/home/item.html?id=23ca1f96eb2d458f83f763958f50dbec acc. 33 Exarro date unknown http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/. Limburg

2002 et al Ecological Economics 409. 34 Exarro date unknown http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/. Mitsch and

Gosselink 2002 Ecological Economics 25.

https://www.arcgis.com/home/item.html?id=23ca1f96eb2d458f83f763958f50dbec



10

well as dissolve compound of sodium, chloride, calcium, magnesium and potassium."35

In essence they provide a free water purification service.36 Wetlands also provide a

cultural function through their recreational uses, educational uses and aesthetic value.37

In South Africa they are of national importance for the role they play in the control of

erosion, flood attenuation, biodiversity value, water purification, storage recharge and

streamflow regulation, and the benefit they provide in the security of food and water.38

Human activities in catchments affect the sustainability of rivers and wetlands.39 Wetlands

of international significant in South Africa are impacted on by human modifications.40

Thus, although people depend on the services offered by wetlands, human-induced

modifications impact on the health and safety of society and can limit the worth of these

systems through altered flow and sediment regimes, a decline in water quality, the

fragmentation and destruction of habitat and the loss of biodiversity.41 "Wetland

functionality is the core of any wetland protection initiative," as when the functionality is

protected and maintained the integrity of the entire ecosystem and the reserve42 will be

met.43 Regulation of the human impacts on wetlands is required as society can only

benefit from the services provided by them if their key functions are protected.44 The

economic gains of a proposed development are often used as a motivation for the

continuation thereof, without determining the cost impact on the ecosystem services

provided by the wetland system.45 It is also necessary to do an economic valuation of

wetlands in the technical reports accompanying water use and environmental

35 Hammer and Bastian 1989 and Lindley 1998 in Exarro date unknown http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/.

36 Exarro date unknown http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/. 37 Exarro date unknown http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/. 38 Department of Water and Sanitation 2014 Guideline to regulate activities/ developments affecting

wetlands 27. 39 Day "Rivers and Wetlands" 852. 40 Godden 2005 JOEL 182. 41 Department of Water Affairs 2012 Operational policy: regulate development and activities affecting

watercourses 3. 42 Reserve is defined in section 1 of the NWA as "the quantity and quality of water required (a) to satisfy

basic human needs by securing a basic water supply, as prescribed under the Water Services Act 108 of 1997 for people who are now or who will in the reasonably near future, be relying upon; taking water from; or being supplied from, the relevant water resource and (b) to protect aquatic ecosystems in order to secure ecologically sustainable development and use of the relevant water resource."

43 Department of Water and Sanitation 2014 Guideline to regulate activities/ developments affecting wetlands 26.

44 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting watercourses 4.





11

authorisation.46 Coal mining in wetlands in Mpumalanga will be used to illustrate the above

further.

2.3 Wetlands in the coal mining industry in Mpumalanga

Mining is a "landscape-changing activity" with unique impacts on environmental aspects

such as water quality and hydrology, and requires specific environmental regulation to

monitor and control its impact on wetlands and the subsequent rehabilitation thereof.47

In order to determine the impacts of coal mining on wetlands it is important to understand

the various mining methods. Coal mining methods are divided into two broad categories,

namely opencast and underground mining. Opencast mining is frequently used when the

deposit is horizontal or gently dipping and within 60 meters of the surface.48 During

opencast mining the overburden49 rock and soil above the coal seam are blasted and

removed.50 The overburden is stripped (by dragline or truck-and-shovel operations) and

deposited back into the open or mined-out voids, but some overburden stockpiling

occurs.51 The exposed coal seams are drilled and blasted and hauled out of the pit by

trucks.52 Once the coal is removed the rehabilitation process commences. This consists

of spoiling the overburden into the open void, placing sub- and topsoil onto the

overburden, levelling the sub- and topsoil, and revegetating the area.53 Underground coal

mining can occur through "bord and pillar" and "total extraction." Bord and pillar mining

is done by sinking a shaft to the coal seam and extracting the seam from bords or

rooms.54 During bord and pillar mining a significant amount of coal is left behind in the

46 This is currently not a requirement to be included in water use and environmental authorisations and if included this is on a voluntary basis. This statement is based on the author’s experience in the role of an environmental permitting specialist for Anglo American Coal South Africa.

47 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 7. 48 Wells et al "Terrestrial Minerals" 341. 49 Defined by Oxford Dictionary as "Rock or soil overlying a mineral deposit." Oxford University Press

2016 http://www.oxforddictionaries.com/definition/english/overburden. 50 Stoop A framework methodology for the cumulative impact assessment of wetlands 53. 51 Wells et al "Terrestrial Minerals" 341. 52 Stoop A framework methodology for the cumulative impact assessment of wetlands 53. 53 SACMA 2005 Surface Strip Coal Mining Handbook 3-9. 54 Wells et al "Terrestrial Minerals" 346. Bord and pillar mining is a method of working coal seams. "First

bords are driven, leaving supporting pillars of coal between. Next, cross drives connect the bords, leaving supporting coal as rectangular pillars. Finally, the pillars are mined (extracted, won, robbed) and the roof is allowed to cave in. The bordroom is the space from which bord coal has been removed" as in Department of Water Affairs and Forestry 2008 Best Practice Guideline – A6: Water Management for Underground Mines xiii.

12

form of pillars to support the overlying strata or roof.55 Total extraction mining has been

developed to remove the entire coal seam.56

Mpumalanga wetlands are classified by the national classification system as palustrine

wetlands (seepage and floodplain wetlands), which include vegetated and unvegetated

endorheic pans (isolated wetlands).57 The most common wetland types in Mpumalanga

are "seepage and non-floodplain riparian wetlands," which make up at least 34% of the

total wetland coverage of the Upper Olifants River Catchment (hereafter UORC).58

Seepage wetlands are located on noticeable slopes, including sloping valley bottoms, and

are associated with perched water tables and saturated conditions close to the surface.59

Floodplain wetlands are found on a broad, generally flat topography dominated by alluvial

processes and can occur next to well-defined river channels.60 The floodplain riparian

wetlands make up 28% of the total wetland coverage.61 Endorheic pans occur in

topographic depressions with the following characteristics: a closed drainage, flat basin

floor, less than two meters when fully flooded, circular to oval shaped.62 A total of 4628

endorheic pans occur in the province, of which 2043 are perennial and 2585 are non-

perennial.63 Although numerous pans occur in the province, the total area made up by

non-perennial and perennial pans is 2.5% and 1.5% of the total wetland coverage of the

UORC. A percentage of 0.2% has been classified as artificial wetlands.64

Most of South Africa’s coal is mined in the Mpumalanga province.65 The protection of

wetlands within the Mpumalanga coal mining industry is important as the Mpumalanga

wetlands and coal are inseparable. Coal is formed by subjecting the residue of

55 Wells et al "Terrestrial Minerals" 348. 56 Wells et al "Terrestrial Minerals" 348. 57 Linstrom and Emery "Wetlands" 18. 58 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

5. As per Breedt Understanding subterranean hydrology in the delineation of wetlands 2, despite a number of classification systems worldwide including hillslope seepage wetlands, limited work has been done on this type of wetland. (Breedt references Brinston et al 1993; Dini and Cowan 2000; Ewart-Smith et al 2006; Kotzé et al 2005; Maxwell et al 1995; Semenuik and Semenuik 1995 and Ward and Lambie 1999.)

59 Linstrom and Emery "Wetlands" 21. 60 Linstrom and Emery "Wetlands" 20. 61 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

5. 62 Linstrom and Emery "Wetlands" 20. 63 Emergy, Lotter and Wiliamson 2002 Determining the conservation value of land in Mpumalanga ii. 64 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

5. 65 Stoop A framework methodology for the cumulative impact assessment of wetlands 53.

13

decomposed vegetation to pressure and temperature over a long period of time.66 Coal

reserves in South Africa, found in the sediments of the Permian age, occur in fairly thick,

shallow lying coal seams.67 The coal within the province was created by geological forces

from ancient wetlands that remained wet, shallow zones within the coal reserves.68

Numerous studies have indicated the relationship between geology and soils and wetland

distribution.69 The areas where coal mining occur are therefore intrinsically linked to the

occurrence of wetlands, which "requires extensive wetland rehabilitation70 both onsite

and potentially as part of offsets."71

Recently a large increase in prospecting and mining rights applications in the province

especially impacting on wetlands and upper catchments was noted.72 Table 2 indicates

the percentage of the area of wetlands and water sources that has in 2013 been allocated

to mining (prospecting and mining rights) nationally and in Mpumalanga.73 Areas within

South Africa and Mpumalanga that are sensitive to mining are highlighted in Figure 3.

66 Stoop A framework methodology for the cumulative impact assessment of wetlands 52. 67 Stoop A framework methodology for the cumulative impact assessment of wetlands 52. 68 Exarro date unknown http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/. 69 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

15. 70 Wetland rehabilitation is "the process of assisting recovery of a degraded wetland in terms of the

wetland condition, function and associated biodiversity, or to maintain the health of a wetland that is threatened by degradation, through the implementation of remedial interventions or proactive preventative measures" and "involves the physical, chemical or biological characteristics of a degraded wetland system in order to repair or improve wetland integrity and associated ecosystem services" as in Water Research Commission 2015 Wetland rehabilitation in a mining landscape 10.

71 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 7. 72 Department of Environmental Affairs "Current and projected mining impacts on grassland, wetlands

and watersheds" 4. Note that not all mining rights application are granted by the DMR. The Centre of Environmental Rights 2016 Zero Hour Report 27 indicates that in a briefing from the DMR to the Select Committee on Land and Mineral Resources out of 220 mining and prospecting rights applications received by the DMR in Mpumalanga only 12 have been granted. Also refer to Parliamentary Monitoring Group 2014 htpp://pmg.org.za/committee-meeting/17920/. The dataset used was as supplied by the DMR and updated in 2013. Refer to Department of Environmental Affairs "Current and projected mining impacts on grassland, wetlands and watersheds" 13.

73 Department of Environmental Affairs "Current and projected mining impacts on grassland, wetlands and watersheds" 11: "the FEPA maps are most appropriately applied as a proactive planning tool at the water management area or national level" therefore ground truthing is required to determine the extent of the wetland (refer to 2.4.2 for discussion around FEPAs and the extent of wetlands).


14

Table 2: Key ecological infrastructure allocated to mining nationally and in

Mpumalanga74

KEY ECOLOGICAL INFRASTRUCTURE

NATIONAL MPUMALANGA

Percentage

area with allocated mining rights

Percentage

area with allocated

prospecting rights

Percentage

area with allocated mining rights

Percentage

area with allocated

prospecting rights

Freshwater Ecosystem Priority Areas (FEPAs)

0.6 14.1 1.7 32.2

Strategic Water Source Areas

(SWSAs)

0.2 6.6 0.3 26.4

Wetlands 1.2 12.5 5.2 41.8

Figure 3: Areas sensitive to Mining75

74 Centre of Environmental Rights 2016 Zero Hour 10. 75 Holness et al "Limiting and mitigating the impact of coal mining on wetlands" 15.

15

In order to understand the impact of coal mining on wetlands it is necessary to look at

the life-cycle of mining as well as the main factors influencing wetlands, which include

water level, nutrient status and natural disturbances.76 The life-cycle of a mining project

generally includes various stages from the reconnaissance stage, the exploration or

prospecting stage, the development and operational stage, to the final decommissioning

and closure stage.77 These stages align with the mining activities that require

authorisation as per the MPRDA.78 As mining advances through these stages more

resources are required, until a decision to continue with mining is made.79

Opencast coal mining results in the destruction of wetlands by the removal of vegetation

together with the topsoil prior to the removal of the overburden and coal seams.80 This

is evident in Mpumalanga, where wetlands and coal seams are located in low-lying

areas.81 The clearing of vegetation increases the transportation and deposition of

sediment, especially through runoff during high rainfall.82 This is especially evident in

opencast coal mining where free-draining rehabilitation designs are implemented,

resulting in increased run-off to wetlands and lowering the infiltration of water to

wetlands.83 Coal fines84 deposited in downstream environments such as wetlands can

spontaneously combust, resulting in the burning of wetlands.85 Mining can also affect the

key hydrological processes supporting wetlands both directly and indirectly in various

ways, including:86

(a) The interception of the perched groundwater that supports the wetlands by the

opencast cut (specifically hillslope seepage wetlands common to Mpumalanga).

76 Linstrom and Emery "Wetlands" 26. 77 Department of Environmental Affairs et al 2013 Mining and Biodiversity Guideline 12. 78 Department of Environmental Affairs et al 2013 Mining and Biodiversity Guideline 12. 79 Department of Environmental Affairs et al 2013 Mining and Biodiversity Guideline 12. 80 Stoop A framework methodology for the cumulative impact assessment of wetlands 58. 81 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

45. 82 Stoop A framework methodology for the cumulative impact assessment of wetlands 58. 83 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 7. 84 Coal fines are fine-graded coal, a byproduct of coal processing and mining. 85 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 7. 86 Stoop A framework methodology for the cumulative impact assessment of wetlands 58.

16

(b) The possible interception of the sandstone aquifer of the weathered Karoo

stratigraphy (dominant in Mpumalanga coalfields), that is supposed to underlie the

floodplain alluvium.

(c) In order for opencast and underground coal mining to continue it is necessary to

de-water the area to allow safe access to the coal. The drawdown effect from the

abstraction of water can impact on the groundwater flow to wetlands and can result

in the drying up of wetlands.

(d) Site clearance, infrastructure construction and opencast mining can cut off or

redirect drainage lines, resulting in a change in the surface water flows to wetlands.

The interception of the groundwater flow to wetlands will result in the drying up of the

wetland if the system is entirely dependent on groundwater to replenish or recharge it

(as is common for hillslope seepage wetlands).87 The interception of the groundwater

flow is possible in both underground and opencast coal mining, while in the case of

opencast mining the surface flow to wetlands will almost certainly be disrupted and

completely cut off.88

Coal mining not only impacts on water quantity but also on water quality. Water pollution

will occur when contaminated or mine-affected (commonly referred to as "dirty") water

enters the watercourses. Sources of pollution include:

(a) Pollution from spilled or leaked hydrocarbons associated with the machinery used

for mining. Spillage can occur both from the overflow of water containment facilities

during high rainfall events and through human neglect.89

87 Stoop A framework methodology for the cumulative impact assessment of wetlands 58. 88 Stoop A framework methodology for the cumulative impact assessment of wetlands 59. 89 Stoop A framework methodology for the cumulative impact assessment of wetlands 59.

17

(b) Acid mine drainage (hereafter AMD), which can impact on the long-term

functionality of wetlands, as well as rehabilitation structures within a watercourse,

such as gabions.90 AMD is "acidic water" formed by the91

oxidation of iron sulphide compounds, such as pyrite, in the mines by air, dissolved oxygen in water, and chemoautotrophs, which is bacteria that can use the iron sulphates as an energy source.

The sources of AMD include active mining areas where sufficient de-watering does not

occur, leading to the decanting of acidic water from open pits or underground workings,

abandoned mines where de-watering has ceased and acid water decants from

rehabilitated areas, from mine residue stockpiles and deposits (coal mine waste), and

from the overflow of pollution control facilities (pollution control dams) that contain the

acidic water. The frequency of AMD is significantly increased by the disturbance of land,

such as that caused by mining, where more minerals are exposed to water and air.92

Wetlands have the ability to ameliorate AMD to a certain degree through their purification

function, but after several years of receiving AMD they display a reduced capability to

retain pollutants.93

The impacts from underground mining are less destructive than those from opencast

mining94 alluded to above. One significant impact from underground mining on wetlands

is subsidence or sinkhole formation.95 Subsidence can alter the flow regime of a wetland

and result in the drying up thereof if the surface water flow is connected to the

underground workings.96 Subsidence can also lead to the establishment of depressions

and artificial wetlands, the vegetation of which differs from natural systems.97 Specific

90 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province 45.

91 Stoop A framework methodology for the cumulative impact assessment of wetlands 59. Also refer to Feris and Kotzé 2014 PER 2108, which states that AMD is "a natural chemical reaction which occurs when iron pyrite is exposed to air and water."

92 Feris and Kotzé 2014 PER 2108. Jennings, Neuman and Blicker 2008

http://www.pebblescience.org/pdfs/Final_ Lit_Review_AMD.pdf state that "mining increased the exposed surface area of sulphur-bearing rocks allowing for excess acid generation beyond natural buffering capabilities found in the host rock and water resources."

93 Linstrom and Emery "Wetlands" 23. 94 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

45. 95 Stoop A framework methodology for the cumulative impact assessment of wetlands 59. 96 Stoop A framework methodology for the cumulative impact assessment of wetlands 59. 97 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

45.

18

measures are therefore required for the management of mining impacts on wetlands and

wetland rehabilitation structures, while opportunities exist for effective wetland

rehabilitation in the mining landscape to contribute to integrated water resource

management and resource quality objectives.

To relate the economic value of wetlands to that of the coal mining industry, the following

comparison can be made: wetlands render water treatment for free while the mine water

treatment capital expenditure costs in Mpumalanga were R600 million for 15 mega litres

of water per day in 2012.98 An argument presented is that a coal mine contributes to the

income of the area in which it operates as well as the national income and tax base. This

is, however, only temporary and after its closure latent and residual environmental

impacts and pollution might present themselves, creating a liability that erases all the

income generated during operation.99 This is illustrated in Figure 4. The wetlands in the

area in which the coal mine is situated do not directly contribute to income but indirectly

provide services such as clean water, water treatment, storm water control and

sedimentation management, to name only a few benefits, for a much longer time period

than the operation of the coal mine in the area.100 In many instances opencast coal mining

results in the total loss of wetlands within and surrounding the mining area.101 Wetland

creation and re-establishment in post-mining landscapes are aimed at mitigating the total

loss of wetlands.102




101 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 25. 102 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 25.

19

Figure 4: Summary table of potential impacts from mining on water

resources103

2.4 The legal definition/s of wetlands

Due to the variability in their location, size, morphology, biodiversity, hydrology,

topography, climate and soil conditions, and human influence it is difficult to define

wetlands globally,104 which may partly explain why "different entities define wetlands

differently."105 This complicates the legal protection of wetlands.106 "Wetlands" are

defined in the Ramsar Convention as:107

Areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt.

The Ramsar definition was not included in the NWA. The NWA definition is more practical

and appropriate to local conditions.108 The definition of a "wetland" as contained in the

NWA is: 109

103 Department of Environmental Affairs "Current and projected mining impacts on grassland, wetlands and watersheds" 8.

104 Stoop A framework methodology for the cumulative impact assessment of wetlands 26. 105 State v Stefan Frylink and Mpofu Environmental Solutions cc case number 14/1740/2010 of 6 April

2011 para 9 (hereafter the Frylink case). 106 Breedt and Dippenaar date unknown

http://gwd.org.za/sites/gwd.org.za/files/02%20N%20Breedt_A%20summary%20of%20Wetland%20Legislation.pdf.

107 Kidd Environmental Law 135. This definition was adopted in the National Wetland Classification System and by the South African National Biodiversity Institute. Refer to Ewart-Smith et al 2006 in Breedt Understanding subterranean hydrology in the delineation of wetlands 3.

108 Department of Water and Sanitation 2014 Guideline to regulate activities/developments affecting wetlands 25.

109 Section 1 of the NWA.

20

Wetlands means land which is transitional between terrestrial and aquatic systems where the water table is usually at or near the surface, or the land is periodically covered with shallow water, and which land in normal circumstances

supports or would support vegetation typically adapted to life in saturated soil.110

The NWA definition was later included in listing notice 1 of the 2014 EIA regulations.111

In terms of the definition, wetlands must have three of the following attributes: (a) the

land must be supported predominately by hydrophytes112 (at least periodically); (b) the

substrate must be predominately undrained soils; and (c) the substrate must not be soil

and must be water-logged at some time during the growing season of each year.113 The

three-tiered approach is therefore based on hydrology, the physiochemical environment,

and vegetation.114 What is also evident, and important to the coal mining environment,

is that the RAMSAR definition explicitly includes artificial wetlands, whereas the NWA

definition refers only to natural wetlands.115 Wetlands, despite what the term suggests,

are not land that is always wet, as some types of wetlands such as pans can be dry for

years.116 However, for a wetland to be regarded as a wetland the soil needs to be wet

for a long enough time for it to be anaerobic (depleted of oxygen).117

As will become evident, wetlands may also be referred to as watercourses. Watercourses

are vital for maintaining a sufficient supply of surface and groundwater, hydrological

stability, flooding and erosion control and safeguarding the survival of many forms of

fauna and flora, and the use thereof is therefore regulated.118 The term "wetland" is

110 Similar to the definition by Cowardin et al 1979 as per Stoop A framework methodology for the cumulative impact assessment of wetlands 26.

111 Regulation 2 of Listing Notice 1 GN R983. In the Frylink case the defence argued that the NEMA does not contain a definition of wetlands.

112 Hydrophytes are "plants that are physiologically bound to water where at least part of the generative cycle takes place in or on the water surface" in Stoop A framework methodology for the cumulative impact assessment of wetlands 32.

113 Cowardin et al 1979 in Stoop A framework methodology for the cumulative impact assessment of wetlands 26 – 27 and Mitsch and Gosselink 2000 and Breedt Understanding subterranean hydrology in the delineation of wetlands 2. Also refer to the Frylink case, which states that "A common thread in wetland definitions is that it is an area of land that is inundated for prolonged periods of time and that has due to prolonged inundation characteristics that show up typically in the form of vegetation adapted to wet conditions, a water table close to or at the land surface, and soils which show distinct signs of saturation, be it permanent or seasonal."

114 Breedt Understanding subterranean hydrology in the delineation of wetlands 2. 115 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

12. 116 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 6. 117 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 6. 118 Department of Water Affairs 2012 Operational policy: regulate development and activities affecting

watercourses 1. The Department of Water Affairs is as from May 2014 called the DWS.

21

contained within the definition of "watercourse" as defined in the NWA119 and the NEMA120

regulations, as follows:

(a) a river or spring;

(b) a natural channel in which water flows regularly or intermittently;

(c) a wetland, lake or dam into which, or from which, water flows; and

(d) any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse,

and a reference to a watercourse includes, where relevant, its bed and banks.

The inclusion of the term "wetland" in the definition of "watercourse" is relevant as the

licensing requirements of water uses as contained in section 21 of the NWA refer to the

term watercourse.121 However, wetlands are not included in the definition of

"watercourse" in the Conservation of Agricultural Resources Act 43 of 1893 (hereafter

CARA). CARA defines a watercourse as "a natural flow path in which run-off water is

concentrated and along which it is carried away."122 In order to achieve the objective of

CARA the Minister may prescribe control measures to which a landowner needs to

comply.123 Such control measures may relate to "the utilisation and protection of vleis,

marshes, water sponges, water courses and water sources."124 Vlei is the Afrikaans word

for wetland and is defined by the Oxford Dictionary as "low-lying, marshy ground, covered

with water during the rainy season."125 The term "water resource" on the other hand

includes "a watercourse, surface water, estuary or aquifer." Therefore "water resource"

also indirectly refers to wetlands, as the term "wetland" is included in the definition of a

watercourse.126 The Water Research Commission stated in 2015 that "wetlands have

been prioritised for biodiversity conservation at national and provincial levels" and on

national level under the NWA through their description as water resources.127

119 Section 1 of the NWA. 120 Regulation 2 of GN R983. 121 Section 21(c) of the NWA refers to "impeding and diverting the flow of water in a watercourse" and

section 21(i) refers to "altering the bed, banks, course or characteristics of a watercourse." Refer to 3.4.2.2.

122 Section 1 of the CARA. 123 Section 6(1) of CARA. 124 Section 6(2) of CARA. 125 Oxford Dictionaries 2016 http://www.oxforddictionaries.com/definition/english/vlei. 126 Section 1 of the NWA. 127 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 6.

http://www.oxforddictionaries.com/definition/english/vlei

22

Wetlands form part of the environment. The core concept of "environment" is not

constitutionally defined128 but the NEMA as the framework legislation for the protection

of the environment includes an encompassing definition of the "environment":

The surroundings within which humans exists and that are made up of the land, water and atmosphere of the earth; micro-organisms, plant and animal life; any part or combination of (i) and (ii) and the interrelationships among and between them; and (iv) the physical, chemical, aesthetic and cultural properties and

conditions of the foregoing that influence human health and well-being.

The definition of the environment implies that all aspects falling within the ambit of this

definition underpin Integrated Environmental Management.129 The NEMA, by referring to

water and the ecosystems, may therefore also hold reference to the regulation

wetlands.130 For government departments131 that focus on specific environmental media,

the definition of "environment" is challenging.132 This will become evident in the

discussion on media-specific legislation to follow.133 The National Environmental

Management: Biodiversity Act 10 of 2004 (hereafter NEMBA) and the National

Environmental Protected Areas Act 57 of 2003 (hereafter NEMPAA) regulate the

protection of ecosystems, including those associated with wetlands, but do not define the

term wetland. The National Environmental Management: Integrated Coastal Management

Act 24 of 2008 (hereafter NEMICMA) relates to the management of coastal wetlands as

defined in the Act, and thus does not have reference to the Mpumalanga province.134

From the wide array of direct and indirect definitions of wetlands in various environmental

laws, it can be concluded that the definitions may cause interpretation problems. The

situation is further complicated by the inclusion of a set of different buffer zones for the

developmental impacts on wetlands in the legal framework.135

128 Badenhorst et al 2007 Laws of South Africa para 34. 129 Bosman et al 2004 SA Public Law 414 and Chapter 5 of NEMA. 130 Bosman et al 2004 SA Public Law 414. 131 Such as the DWS and the Department of Environmental Affairs and Tourism. 132 Bosman et al 2004 SA Public Law 415. 133 See sections 3.3.3; 3.4.2 and 3.5.2 of this dissertation. 134 A "coastal wetland" means any wetland in a coastal region and includes "land adjacent to coastal

waters that is regularly or periodically inundated by water, salt marshes, mangrove areas, inter-tidal sand and mud flats, marshes and minor coastal streams regardless of whether they are of a saline, freshwater or brackish nature and the water, the subsoil and substrata beneath, and bed banks of any such wetland." See section 1 of NEMICMA.

135 Refer to 3.4.2.2 and 3.5.2.2.

23

Watercourse and wetland extent and buffers

To further complicate the regulation of wetlands, the legislation also makes reference to

the "extent" of the watercourse and also to the "buffer," of the terms defined in the

preceding section further limiting the physical area in which certain activities such as

mining may occur. It is important to understand these boundaries. It is important to keep

in mind that the term "wetland" is included in the definition of a watercourse. The extent

of a watercourse, as illustrated in Figure 5, is the edge or boundary of the watercourse,

while the regulated area is the outer edge of the riparian habitat or the 1:100 year flood

line136 (whichever is the greatest).137 The term "riparian habitat" refers to the "physical

structure and associated vegetation of the areas associated with a watercourse" that

distinguish these areas from adjacent land areas.138

136 The term "flood line" is not defined within the NWA or GN R704. Refer to section 3.4.2.2 and 3.5.2.2 for a discussion of the NWA and GN R704.

137 Department of Water Affairs 2012 Operational policy: regulating development and activities affecting watercourses 3.

138 Section 1 of the NWA. The definition of riparian habitat further extends to indicating areas which are commonly characterised by alluvial soils, and which are inundated or flooded to an extent and with a frequency sufficient to support vegetation of species with a composition and physical structure distinct from those of adjacent land areas.

24

Figure 5: Illustration of the regulated area or extent of a watercourse.139

Although the environmental legislation refers to wetland boundaries, the extent of a

watercourse or wetland is not defined. The first attempt at a legal definition of the "extent

of a watercourse" was included in the proposed amendment of the General Authorisation

for section 21(c) and (i) water uses.140 The "extent of a watercourse" was defined as:141

(a) a river, spring or natural channel in which water flows regularly or intermittently "within the outer edge of the 1 in 100 year flood line or riparian habitat measures from the middle of the watercourse from both banks" and for

(b) wetlands and pans "within a 500 meter radius from the boundary (temporary zone) of any wetland or pan" (when the temporary zone is not present then

the seasonal zone is delineated as the wetland boundary).

139 Department of Water Affairs 2012 Operational policy: regulating development and activities affecting watercourses 3.

140 Refer to 3.4.2.2 and 3.5.2.2 for discussion around the General Authorisation for water uses related to a watercourse i.e. section 21(c) and (i) water uses.

141 GN R1180 as authorised in terms of section 63 of the NWA to amend the general authorisations.

25

The amended General Authorisation for section 21(c) and (i) water uses was published

on the 26 August 2016.142 The extent of a watercourse in GN R509 differs from that in

GN R1180 and is:143

(a) The outer edge of the 1 in 100 year flood line and/or delineated riparian habitat, whichever is the greatest distance, measured from the middle of the watercourse of a river, spring, natural channel, lake or dam and

(b) Wetlands and pans: the delineated boundary144 (temporary zone) of any

wetland or pan.

With regard to wetlands, the 500 meter radius buffer has been removed from the

definition of a regulated area.

Watercourse buffers, as illustrated in Figure 6, are areas adjacent to watercourses,

outside of the regulated area, that are interconnected with the watercourse through

ecological, hydrological and physical attributes.145 Watercourse buffers serve to mitigate

developmental impacts and for this reason should be as wide as possible, but their size

will depend on the characteristics of the watercourse, the land use surrounding the

watercourse, and the reason for the protection thereof.146 Wetland buffers are "areas

that surround a wetland and reduce adverse impacts to wetland function and values from

adjacent development."147 Wetland buffers serve the following purposes: kerbing the

effect of storm water runoff; preventing erosion; filtering suspended solids, nutrients and

toxic substances; regulating water level variations; providing essential habitat for

biodiversity, and reducing adverse anthropogenic impacts.148

Appropriate watercourse buffers must be defined in a consistent manner to safeguard property and human welfare, health and safety (flood damage

142 GN R509. 143 Regulation 2 of GN R509. 144 "Delineation of a wetland and riparian habitat" is further defined in GN R509 as "delineation of wetlands

and riparian habitat according to the methodology and contained in the Department of Water Affairs and Forestry, 2005 publication: A Practical Field Procedure for Delineation of Wetlands and Riparian Areas." Wetland delineation is discussed in section 2.3.4 of this dissertation.





26

prevention); protect, restore and maintain biologically diverse aquatic ecosystems; and maintain and improve water quality and water quantity.149

Scientific studies have indicated that efficient buffer widths range from 3m to 100m,

depending on what is to be protected.150 Factors that influence the effectiveness of buffer

zones include slope, soil type and vegetation.151 However, a fixed buffer zone, such as

that included in the South African legislative framework, is easier to govern.152

Figure 6: Illustration of the extent of a watercourse and its related buffers.153

The question arises whether the extent of a wetland as included in the General

Authorisation and other legislation, such as the NWA and NEMA was scientifically

determined or whether it has been arbitrarily imposed. The review of the legal framework

in the next chapter and the application thereof to mining scenarios will attempt to answer

the question.154


150 Hawes and Smith "Riparian Buffer Zones: Functions and Recommended Widths" 4 indicates "10 feet for bank stabilisation and stream shading to over 300 feet for wildlife habitat."

151 Hawes and Smith "Riparian Buffer Zones: Functions and Recommended Widths" 6-7. 152 Hawes and Smith "Riparian Buffer Zones: Functions and Recommended Widths" 7. 153 Department of Water Affairs 2012 Operational policy: regulating development and activities affecting

watercourses 9. 154 See Chapter 3 for the legislative framework and chapter 4 for the practical application.

27

Wetland types

It is important to the regulation of wetlands to consider the different types of wetlands.

The following types occur in South Africa:155

(c) Channelled valley bottom wetlands;

(d) Unchannelled valley bottom wetlands;

(e) Floodplain wetlands;

(f) Hillslope seep and valleyhead seep wetlands; and

(g) Pans and depressions, including lakes.

These different types of wetlands require different management regimes due to the

difference in their level of vulnerability to impacts and resilience to environmental

change,156 as well as the different functions provided by them.157 The proposed national

wetland classification system (hereafter NWCS) follows the hydromorphic (hereafter

HGM) approach to classifying wetlands, using the hydrological and geomorphological

characteristics.158 The NWCS recognises eight HGM types for inland wetland systems159

(such as in Mpumalanga) namely the (a) channel (river including banks), (b) channelled

valley bottom wetland, (c) unchannelled valley bottom wetland, (d) floodplain wetland,

(e) depression, (f) flat; (g) hillslope seep, and (h) valleyhead seep.160 These terms have

been used for the HGM types to ensure consistent wetland classification within South

Africa and are also used in some of the wetland tools such as the wetland management

155 Day and Malan 2010 Tools and metrics for assessment of wetland environmental conditions and socio-economic importance in Department of Water and Sanitation 2014 Guideline to regulate activities/developments affecting wetlands 26. Also refer to Breedt Understanding subterranean hydrology in the delineation of wetlands 3.


157 Stoop A framework methodology for the cumulative impact assessment of wetlands 26. 158 SANBI 2009 Further development of a proposed national wetland classification system for South Africa

13. According to Ewart-Smith et al 2006 in Breedt Understanding subterranean hydrology in the delineation of wetlands 5 "landform and hydrology are two fundamental features that determine the existence of all wetlands."

159 Inland systems are "ecosystems that have no existing connection to the ocean but which are inundated or saturated with water, either permanently or periodically." As in SANBI 2009 Further development of a proposed national wetland classification system for South Africa 35.

160 SANBI 2009 Further development of a proposed national wetland classification system for South Africa 35.

28

series; WET-Health161 and WET-EcoServices.162 However, only a subset of the HGM units

as proposed in the NWCS is applicable to the definition of wetlands as contained in the

NWA.163 What is important is that the NWA makes a clear distinction between channels

(or rivers) (one of the HGM types) and wetlands, both of which are included in the

definition of "watercourses", but "channel" is not included in the definition of a

"wetland."164 All the remaining HGM types are included in the definition of a wetland

within the NWA.165

As they are a manifestation of the hydrological regime of a catchment, wetlands cannot

be managed in isolation from other water resources.166 It is important that development

takes into account the wider connectivity of wetlands to other wetlands and watercourses,

as wetland connectivity is essential in sustaining geohydrological and hydrological flow,

which supports biodiversity.167 Wetland connectivity is essential to the existence and

functioning of wetlands and hydrologically connected wetlands are therefore regarded as

wetland clusters in the National Freshwater Ecosystem Priority Areas (hereafter NFEPA)

map sets.168 Wetland connectivity is of importance as this impacts on one of the

watercourse characteristics, namely the flow regime.169 The NFEPA map provides

strategic spatial priorities for protecting South Africa’s freshwater ecosystems and

161 WET-health is a tool to assess the health and integrity of a wetland and has application for the assessment of impacts in Environmental Impact Assessment (hereafter EIA) and to determine the Present Ecological State (hereafter PES) of a wetland. Refer to Macfarlane et al 2008 "WET-health a technique for rapidly assessing wetland health" 6.

162 WET-EcoServices is a tool used to determine the services that wetlands provide as referred to in Macfarlane et al 2008 "WET-health a technique for rapidly assessing wetland health" 6. SANBI 2009 Further development of a proposed national wetland classification system for South Africa 41.

163 SANBI 2009 Further development of a proposed national wetland classification system for South Africa 46. Refer to section 1 of NWA for definition.






169 NFEPA was a three-year project between the South African National Biodiversity Institute (hereafter SANBI), the Council for Scientific and Industrial Research (hereafter CSIR), Water Research Commission (hereafter WRC), Department of Environmental Affairs (hereafter DEA), Department of Water Affairs (now the DWS), Worldwide Fund for Nature (hereafter WWF), South African Institute of Aquatic Biodiversity (hereafter SAIAB) and the South African National Parks (hereafter SANParks). Water Research Commission 2011 Implementation Manual for Freshwater Ecosystem Priority Areas 1.

29

assisting the sustainable use of water resources.170 Although the NFEPA map is not legally

enforceable it is used by the regulating authority as the "baseline" for the determination

of the extent of a wetland and its buffer. However, the buffer of a wetland is not yet

legally defined; a reference to the buffer has only recently (2016) been included in the

regulations for General Authorisation of section 21(c) and (i) water uses.171 The 500

meter buffer, however, has been applied to the licensing of impacts to wetlands under

section 21(c) and (i) of the NWA for some time already. And while section 21(c) and (i)

specifically refers to the "wetland from which water flows" the 500 meter buffer has been

applied not only in respect of the flow regime of a wetland but also to the physical and

ecological attributes of a wetland, thereby increasing the regulated area.

Wetland delineation

According to GN R509, wetlands should be delineated according to the methodology

contained in the DWS 2005 publication "A practical Field Procedure for Delineation of

Wetlands and Riparian Areas."172 Due to the fact that water is only periodically present in

wetlands (refer to the definition of wetland), key indicators such as vegetation and soil

are required to identify and delineate the extent thereof.173 The presence and absence of

water (the hydrology) in wetlands control the abiotic (soil colour, soil texture and water

quality) and the biotic (fauna and flora) characteristics of a wetland.174 What is important

is that water can be introduced to a wetland through direct rainfall, runoff, channel flow

and groundwater discharge.175 Although the delineation of wetlands should take into

account hydrology as well as other indicators, a disturbance in the hydrological

characteristics through mining and related activities may have a significant impact on the

biological characteristics of the wetland.176 Historic wetland boundaries, although

degraded and transformed, are important to use as criteria in the delineation of wetlands,


171 GN R509. 172 Prior to GN R509 wetland delineation was conducted according to the this filed procedure, but only in

GN R509 direct reference to the procedure is made in legislation. 173 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 6. 174 Stoop A framework methodology for the cumulative impact assessment of wetlands 31. 175 Ingram, 1983 and Williams, 1990 in Stoop A framework methodology for the cumulative impact

assessment of wetlands 31. 176 Etherington 1983 in Stoop A framework methodology for the cumulative impact assessment of

wetlands 32.

30

as degraded wetlands are still important in terms of their interaction with water resources

in the surrounding catchment.177

2.5 Conclusion

This chapter has touched on the extent and impact of wetlands globally and in South

Africa with specific reference to Mpumalanga, and has motivated the need for the

protection of these ecosystems. What is evident here is that the term "wetland" means

different things to different people.178 The chapter has also reviewed the South African

legal definition of the term. As summarised in Table 3, it can be concluded that South

African legislation has a wide array of direct and indirect definitions of wetlands. This,

combined with the different buffer zones in the legislation, can lead to difficulty in the

application of the legislation.

Chapter 3 deals with the relevant legislation.

Table 3: Summary of definitions of wetlands

TIME PERIOD

LEGISLATION, POLICY OR GUIDELINE

DEFINITION

Pre-1998

Ramsar Convention on Wetlands of International Importance (1971)

Wetland is defined as "Areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt."

Includes artificial wetlands

Conservation of Agricultural Resources Act 43 of 1893

Contains no definition of wetland.

CARA does refer to the term "vlei" under section 6(2).

Watercourses are defined as "a natural flow path in which run-off water is concentrated and along which it is carried away."

Post-

1998

National Water Act 36

of 1998

Water resource is defined as a watercourse,

surface water, estuary or aquifer.


178 Sandham et al 2008 Water SA 155 state that "There are different definitions of wetlands depending on the user or interest groups."

31

TIME

PERIOD

LEGISLATION,

POLICY OR GUIDELINE

DEFINITION

until 2014

Watercourse is defined as:

(a) a river or spring; (b) a natural channel in which water flows regularly or intermittently; (c) a wetland, lake or dam into which, or from which, water flows; and

(d) any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse, and a reference to a watercourse includes, where relevant, its bed and banks.

Wetlands means "land which is transitional between terrestrial and aquatic systems where the water table is usually at or near the surface, or the land is periodically covered with

shallow water, and which land in normal circumstances supports or would support vegetation typically adapted to life in saturated soil."

Excludes artificial wetlands

National Environmental Management Act 107 of 1998

Environment is defined as "the surroundings within which humans exists and that are made

up of the land, water and atmosphere of the earth; micro-organisms, plant and animal life; any part or combination of (i) and (ii) and the interrelationships among and between them; and (iv) the physical, chemical, aesthetic and

cultural properties and conditions of the foregoing that influence human health and well-being."

Watercourse is defined as:

(a) a river or spring; (b) a natural channel in which water flows regularly or intermittently; (c) a wetland, lake or dam into which, or from

which, water flows; and (d) any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse, and a reference to a watercourse includes, where relevant, its bed and banks.

32

TIME

PERIOD

LEGISLATION,

POLICY OR GUIDELINE

DEFINITION

National Environmental Management: Biodiversity Act: 10 of 2004

Regulates the protection of ecosystems

including those associated with wetlands, but does not define the term "wetland." National Environmental:

Protected Areas Act 57 of 2003

National Environmental Management: Integrated Coastal Management Act 24 of

2008

Relates to the management of coastal wetlands as defined in the Act and thus does not have reference to the Mpumalanga province.

Mineral and Petroleum Resources Development Act 28 of 2002

Does not define the term "wetland."

Post- 2014


In the Frylink case the defense argued that the NEMA does not contain a definition of wetland.

This definition of wetland is subsequently included in listing notice 1 of the 2014 EIA regulations.

National Environmental Management Act 107 of 1998: Regulation 2 of Listing Notice 1 GN R983 in GG 38282 of 4

December 2014

Wetland is defined as in the National Water Act 36 of 1998.

Watercourse is defined as in the National Water Act 36 of 1998.

GN R1180 Draft General Authorisation for Section 21(c) and (i)

water uses.

"Extent of a watercourse" is defined as "(a) a river, spring or natural channel in which

water flows regularly or intermittently "within the outer edge of the 1 in 100 year flood line or riparian habitat measures from the middle of the watercourse from both banks" and for (b) wetlands and pans "within a 500 meter

radius from the boundary (temporary zone) of any wetland or pan" (when the temporary zone is not present then the seasonal zone is delineated as the wetland boundary) and for (c) lakes and dams "purchase line plus a buffer of 50m."

33

TIME

PERIOD

LEGISLATION,

POLICY OR GUIDELINE

DEFINITION

GN R509 General Authorisation for

Section 21(c) and (i) water uses.

"Extent of a watercourse" is defined as

(a) The outer edge of the 1 in 100 year flood line and/or delineated riparian habitat, whichever is the greatest distance, measured from the middle of the watercourse of a river,

spring, natural channel, lake or dam and

(b) Wetlands and pans: the delineated boundary (temporary zone) of any wetland or pan.

DWS 2014 Guideline to regulate activities/ developments affecting wetlands

"Wetland buffers" are defined as: "areas that surround a wetland and reduce adverse impacts to wetland function and

values from adjacent development."

34

CHAPTER 3 LEGISLATIVE FRAMEWORK GOVERNING WETLANDS

3.1 Introduction

As indicated in the preceding chapter "mining activities by their very nature impact upon

natural resources including water resources."179 Legislation may govern a specific sector

such as mining (sector-specific legislation) or a specific medium such as water, air or land

(media-specific legislation).180 Environmental legislation in South Africa is developed as

media-specific legislation, with specific environmental acts for the protection of specific

environmental media.181 Similarly, numerous policies have been developed that have

influenced sector-specific legislation such as that of the mining industry.182 The challenge

is that the development of the sector-specific and media-specific legislation in most

instances was not coordinated.183

Historically the government was in support of the growth of the mining sector, as it

contributed enormously to the economy of South Africa.184 Safeguards were built into the

legislation to ensure that mining would not be impacted by conflicting interests.185 The

environmental regulation of the mining industry has been a long-running battle between

the Department of Environmental Affairs (hereafter DEA) and the Department of Mineral

Resources (hereafter DMR).186 The DMR has the mandate to act under the MPRDA, NEMA

and NEMWA, while the DEA has the mandate to act under the NEMA and specific

179 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 144. See section 2.3. 180 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 139. 181 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 139. 182 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 139. Policies have

been drafted in the form of White Papers such as the White Paper on Mineral and Mining Policy of 1998 which formed the base for the MPRDA.

183 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 139. 184 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 139. 185 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 139. Also see Mabiletsa

and Du Plessis 2001 SAJELP 187 and Maccsand (Pty) ltd v City of Cape Town 2012 (4) SA 181 (CC) (hereafter the Maccsand case), which dealt with the relationship between different pieces of legislation requiring various authorisations (see Olivier et al 2012 PER 538). The series of Maccsand cases commenced with an application to the High Court for an interdict to stop Maccsand (Pty) Ltd from mining until such time as authorisation in terms of the (Western Cape) Land Use Planning Ordinance 15 of 1985 had been granted (see Olivier et al 2012 PER 538). Also see Murombo 2013 Law Environment and Development Journal 39, which states that the Constitutional Court ruled that "mining companies cannot just commence with mining in a municipal area without complying with the applicable municipal planning and zoning regulations."

186 Naidoo and Truter 2014 http://www.werksmans.com/legal-briefs-view/struggle-achieve-cooperative-governance-continues/ and Du Plessis 2015 PER 1446.

http://www.werksmans.com/legal-briefs-view/struggle-achieve-cooperative-governance-continues/


35

environmental acts.187 The DMR has historically adopted the view that obtaining a mining

right or permit trumped the need for any other environmental authorisation required by

any other law.188 This is evident in a case where the DMR approved mining operations

six km from a World Heritage Site189 in Limpopo.190 The Minister of Mineral Resources

addressed the Chamber of Mines and stated that "there is increasing tension globally

between growth and socio-economic development on the one hand and the environment

on the other"191 and South Africa struggles to maintain this balance. Recent years have

seen a change, in that the mining sector now needs to compete on an equal legal footing

with other demands such as those pertaining to the use of water or the protection of

natural resources.192 One such demand specific to the Mpumalanga coal mining industry

is the protection of wetlands, as indicated in Chapter 2. The challenge is to maintain and

restore South Africa’s wetlands to ensure that the ecosystem services they provide keep

up with the growing demands on the resource base.193 Response to this demand is being

expressed through a range of media-specific legislative frameworks for the environmental

and water sectors.194

This chapter now turns to a discussion of the Constitution of the Republic of South Africa,

1996 (hereafter the Constitution) and the legal framework regulating the protection of

wetlands in the Mpumalanga coal mining industry, which discussion deals with three

distinct timeframes namely a) pre-1998,195 b) between 1998 and 2014,196 and c) post-

2014. No wetland-specific legislation exists, but the statutes that provide generally for

the protection and conservation of wetlands will be discussed.197

187 Du Plessis 2015 PER 1445-1446. 188 Naidoo and Truter 2014 http://www.werksmans.com/legal-briefs-view/struggle-achieve-cooperative-

governance-continues/. 189 Mapungubwe Cultural Landscape and National Park. 190 Du Plessis and Du Plessis "Striking the sustainability balance in South Africa" 419. 191 Address by the Minister of Mineral Resources, Ms Susan Shabangu, MP, at the Annual General

Meeting of the Chamber of Mines, delivered on her behalf by Acting Deputy Director-General David Msiza, Johannesburg, South Africa in Du Plessis and Du Plessis "Striking the sustainability balance in South Africa" 420.

192 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 140. 193 Department of Environmental Affairs 2013 State of wetlands in South Africa 4. 194 Department of Environmental Affairs 2013 State of wetlands in South Africa 4. 195 1998 saw the promulgation of the NWA and the NEMA. 196 As of December 2014 the "One Environmental System" has been implemented. 197 Kidd Environmental Law 136. Focus will be placed on the primary sources for the regulations of mining

through the MPRDA, the environment through the NEMA and water through the NWA.



36

During the years spanning the above timeframes, the restructuring of national

departments has resulted various name changes. The current names will be used in this

dissertation, as follows. The DMR refers to the Department of Mining, Environmental

Planning and Energy prior to 1980, the Department of Minerals and Energy prior to 1997

and the Department of Mineral Resources from 10 May 2009 onwards.198 As for the

Department of Environmental Affairs, in 1973 the Department of Planning became the

Department of Planning and Environmental Affairs and it was reorganised in 1979 to

become the Department of Environmental Planning and Energy.199 The Department of

Water Affairs, Forestry and Environmental Conservation was formed in 1980 with a

subsequent name change to the Department of Environmental Affairs in 1981.200 The

Department of Environmental Affairs and Tourism governed environmental matters

between 1994 and 2009. In May 2009 the Department was divided into two departments

namely the Department of Water and Environmental Affairs (in fact a Department of

Environmental Affairs and a Department of Water Affairs) and the Department of

Tourism. In May 2014 the ministries were again restructured into the now Ministry of

Water Affairs and Sanitation and the Ministry of Environmental Affairs, with departments

under each.201 Prior to 2014 the DWS was known as the Department of Water Affairs,

the Department of Water and Environmental Affairs, and prior to that the Department of

Water Affairs and Forestry.202

3.2 Constitution of the Republic of South Africa, 1996

The Constitution contains the Bill of Rights,203 which is the "cornerstone of the democracy

of South Africa."204 The environmental right is contained in section 24 of the Constitution

and reads:205

Everyone has the right –

198 Department of Mineral Resources 2011 http://www.dmr.gov.za/about-us.html. 199 Schwella and Muller "Environmental administration" 73. 200 Schwella and Muller "Environmental administration" 73-74. 201 Glazewski Environmental Law in South Africa 6.6. 202 Breedt Understanding subterranean hydrology in the delineation of wetlands 16. 203 Chapter 2 of the Constitution. 204 Section 7(1) of the Constitution. 205 For the interpretation of section 24 of the Constitution see Kidd Environmental Law 21-26, and Kotzé

2007 RECIEL and Feris 2008 SAHJR. It is not the purpose of this dissertation to provide an analysis of the Constitution, but to indicate that it forms the cornerstone for all environmental regulation and also for the governance of wetlands in South Africa.

37

a) To an environment that is not harmful to their health or well-being; and

b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –

i. Prevent pollution and ecological degradation;

ii. Promote conservation; and

iii. Secure ecologically sustainable development and use of the natural resources while promoting justifiable economic and social development.

Section 36 of the Constitution indicates that the rights as contained in the Bill of Rights

may be limited in terms of law of general application.206 The Constitution recognises three

spheres of government: national, provincial and local. Section 24 of the Constitution

places a duty on all spheres of government to protect the environment through

reasonable measures including legislation. Section 24(b) is pertinent to this discussion on

the protection of wetlands. Government must protect the environment through

reasonable legislative measures to prevent pollution and ecological degradation.207 Mining

results in the degradation and pollution of wetlands and therefore there is an obligation

on government to act when these systems are impacted. This can be done either through

legislation such as will be discussed in the following sections or through other measures.

Such other measures for the protection of wetlands may include the publication of

guidelines such as those published by the DWS and the South African National Biodiversity

Institute (hereafter SANBI).208 The functional competencies for the three spheres are set

out in Schedule 4 and 5 of the Constitution.

While the term "environment"209 is not defined in the Constitution,210 the protection of

the environment is listed in Schedule 4 of the Constitution (though water is not listed).211

A schedule 4 matter is a functional area of concurrent national and provincial competence.

The national legislative authority confers on the National Assembly and the National

Council of Provinces the power to pass legislation with regard to Schedule 4 matters.212

206 The limitation needs to be "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors" as listed in section 36.

207 Section 24(b) of the Constitution. 208 Refer to the bibliography for all the guidelines referenced in chapter 3 and 4 of this dissertation. 209 Refer to section 2.4 of this dissertation for a discussion of the definition of the term "environment." 210 Bosman et al 2004 SA Public Law 418. 211 Bosman et al 2004 SA Public Law 418. 212 Section 44(1)(a) and (b) of the Constitution.

38

Water is regarded as a national matter as water is a component of the definition of

"environment" as contained in the NEMA213 which now also falls within the jurisdiction of

the Minister of Mineral Resources.214 However, an interpretation of these functions may

also create turf wars between the different departments.215 The protection of wetlands

occurs predominately through national legislation implemented by the national and

provincial government departments, as will be discussed in this chapter.

Mineral regulation is not listed in either Schedule 4 or Schedule 5, and the Constitution

does not assign to any of the spheres of government the mandate of managing the

exploitation of minerals.216 It may be inferred from this that the regulation of minerals

falls within the national sphere.217 Rapoo218 states that "any function not expressly

allocated to any sphere of government by the Constitution becomes a central government

responsibility by default." It is a "residual competence that vests in the national

government."219 This was confirmed by the court in the judgement in Maccsand v City of

Cape Town,220 where Cameron AJ stated the following:

Applying this approach, it is clear that the regulation of mining is an exclusive national legislative competence and that the administration of the MPRDA is vested in the national executive. Mining is not mentioned in either Schedule 4 or 5 and so, by "converse inference" it is a legislative competence that falls within

the scope of the term "any matter" as contemplated by s 44(1)(a)(ii) of the Constitution; and the MPRDA itself vests its administration in the Minister of Mineral Resources and her officials within the national executive sphere of government.

3.3 Pre-1998

Since the introduction of the Constitution in 1994 a plethora of new environmental

legislation has been promulgated.221 For example, the MPRDA has been hailed as a

213 Refer to section 2.3. 214 Refer to section 3.5. 215 Kotzé 2006 PER 79. Also refer to Kotzé "Environmental Governance" 110 for the fragmentation in

South African environmental governance. According to Glasweski "Environmental Law in South Africa" environmental governance includes three "distinct but inter-related areas of general concern" namely; land use planning and development; resource protection and consumption (such as mineral and water resources) and waste management and pollution control.

216 Green The regulation of sand mining in South Africa 21. 217 Green The regulation of sand mining in South Africa 22. 218 Green The regulation of sand mining in South Africa 22. 219 Rapoo ‘Reflections on provincial government in South Africa since 1994’ 91. 220 Maccsand case para 14, in Green The regulation of sand mining in South Africa 24. 221 Kidd Environmental Law 14.

39

"revolutionary piece of law promoting sustainable mining."222 The two most significant

pieces of environmental legislation, the NEMA and the NWA, were introduced in 1998.

This section will discuss the regulation of the protection of wetlands prior to this

introduction, also with reference to international law.

International law

The first regulation of wetlands is to be found in the Ramsar Convention, which was

signed in Ramsar, in Iran, in 1971. The Ramsar Convention provides a framework for

national action and international co-operation for the protection of wetlands,223 as stated

in the mission:224

the conservation and wise use of all wetlands through local and national actions

and international cooperation, as a contribution towards achieving sustainable development throughout the world.

International agreements do not become part of the law of South Africa without legislative

transformation,225 which is done in one of three ways:226

(a) The entire treaty can be included in an Act of parliament,

(b) The entire treaty can be included as a schedule to the Act; and

(c) A statute may give the executive the power to bring a treaty into effect in law

through proclamation in the Government Gazette.

South Africa is a signatory to the Ramsar Convention as of 21 December 1975227 but the

treaty has not yet been directly incorporated into South African legislation.228 As a

signatory of the Ramsar Convention, South Africa is required to designate at least one

222 Murombo 2013 Law Environment and Development Journal 39. 223 Stoop A framework methodology for the cumulative impact assessment of wetlands 49. 224 Ramsar 2014 http://www.ramsar.org/about/the-ramsar-convention-and-its-mission. 225 Section 231(4) of the Constitution states that "Any international agreement becomes law in the

Republic when it is enacted into law by national legislation, but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution of an Act of Parliament."

226 Kidd Environmental Law 48. 227 Ramsar 2014 http://www.ramsar.org/wetlandsouth-africa. 228 Kidd Environmental Law 49. Refer to the discussion in section 3.3.3.2 of this dissertation with respect

to the Wetland Conservation Bill that was aimed at incorporating the Ramsar Convention into the South African legislation.

40

wetland of international importance.229 To date230 South Africa has 22 Ramsar wetlands

(see Table 1). South Africa has been party to the Ramsar Convention since 1975, but the

Convention is not provided for in South African legislation, raising the question as to what

measures are in place to protect South African wetlands.

Sector-specific legislation

Prior to May 2004,231 the Minerals Act governed mining operations.232 The Mines Works

Act 12 of 1911 and the Mines and Works Act 27 of 1956, in which safety was the dominant

theme, preceded the Minerals Act.233 The Mines and Works Act 27 of 1956 involved limited

environmental protection measures, viz. the infilling of subsided areas, prohibiting water

release containing "injurious matter," and the soil cladding of mine residue stockpiles and

deposits to prevent pollution.234 The Minerals Act regulated prospecting and mining for

minerals and the rehabilitation of the surface of the land during such operations, and

required the submission of an environmental management programme to the then

Department of Minerals and Energy.235 The provisions for the rehabilitation of the surface

as required by the Minerals Act236 were supplemented by regulations in terms of the

Mines and Works Act 27 of 1956 that remained intact until being replaced by more

stringent regulations in 1993.237 Chapter 5 of the Minerals Act included extensive

provisions for surface rehabilitation and the approval of a rehabilitation plan (an

environmental management plan) by the Regional Manager before any prospecting and

mining could commence. A right could be cancelled or suspended if the holder of the

right did not comply with the provisions related to surface rehabilitation.238 The Minister

could also order rectification steps to be taken if a failure of compliance with surface

rehabilitation occurred, and a right would be issued only if it could be proved that the

229 Kidd Environmental Law 136. 230 2 February 2016. 231 The commencement of the MPRDA. GN R1273 in GN 23922 dated 10 October 2002. 232 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 144. 233 Ayres "Legal requirements – the Environmental Management Programme (EMP) – A critique" 3. 234 Section 12 of the Mines and Works Act 27 of 1956 and McCourt 1999 Mine, Water and Environment

744. 235 Section 38 and 39 of the Minerals Act 50 of 1991 (hereafter Minerals Act) and Lloyd "Coal and the

environment" 4. Also refer to section 3.4.1. 236 S9(3) of the Minerals Act. 237 GN R992 in GG 2741 dated 26 June 1970 issued under section 12 of the Mines and Works Act 27 of

1956; Mostert Mineral Law 65. 238 Sections 11 and 14 of the Minerals Act.

41

applicant could provide sufficiently for the rehabilitation required.239 The Minerals Act and

its regulations did not make provision for the protection of wetlands specifically. The

White Paper on Mining and Minerals Policy was published in October 1998.240 Chapter 4

of the policy had to give effect to section 24 of the Constitution within the mining

context."241 The policy focused on the need to uphold rehabilitation measures post closure

and recognised that it is critical to utilize the country’s mineral resources within the

framework of responsible environmental management.242

In as early as 1992 the DMR243 published the Aide-Memoire "for the preparation of

environmental management programme reports for prospecting and mining."244 The Aide-

Memoire focused strongly on the format and content of an environmental management

programme and did not provide technical guidance.245 The environmental management

programme document aimed to meet the environmental requirements under the Minerals

Act and its regulations; provided for a single document to all authorities concerned with

the regulation of environmental impacts in the mining sector; provided reasons for the

need and benefits of the mining project; described the baseline environment of the

proposed mining site; described the method of prospecting and mining and associated

activities; described the environmental impacts from such activities and the management

criteria to obtain a stated and agreed upon land capability and closure objective.246 The

Aide-Memoire specified that the pre-mining land capability247 should be classified and

mapped into four classes, namely arable land, grazing land, wetland and wilderness

land.248 The requirements of the Aide-Memoire under surface water included the presence

239 Mostert Mineral Law 65 and McCourt 1999 Mine, Water and Environment 744. Section 53A of the Minerals Act.

240 McCourt 1999 Mine, Water and Environment 744. See also White Paper on Mining and Minerals Policy 1998 as available on South African Government 2015 http://www.gov.za/sites/www.gov.za/files/white_paper_mining_minerals_policy_2.pdf.

241 McCourt 1999 Mine, Water and Environment 744. 242 McCourt 1999 Mine, Water and Environment 744. 243 The then Department of Mineral and Energy Affairs. 244 The South African mining industry has developed its own environmental guidelines in the form of an

"Aide-Memoire" that includes all environmental aspects and mining phases. Department of Mineral and Energy Affairs 1992 Aide-Mémoire for the Preparation of Environmental Management Programme Reports for Prospecting and Mining see also in Glazewski and Posnik 2000 The Journal of The South African Institute of Mining and Metallurgy 211. Refer to section 3.3.2 of this dissertation.

245 Ayres "Legal requirements – the Environmental Management Programme (EMP) – A critique" 7. 246 Department of Mineral and Energy Affairs 1992 Aide-Memoire for the preparation of environmental

management programme reports for prospecting and mining 1-2. 247 "The land to be disturbed." 248 Department of Mineral and Energy Affairs 1992 Aide-Memoire for the preparation of environmental

management programme reports for prospecting and mining 12.

http://www.gov.za/sites/www.gov.za/files/white_paper_mining_minerals_policy_2.pdf

42

of wetlands on the property, the extent, the significance and biological diversity

thereof.249 A further requirement was the description of sensitive landscapes under

statutory protection that occurred on site.250 The Aide-Memoire stated that251

A permit in terms of section 20 of the Water Act 54 of 1956, to alter the course of a public stream may be required before the environmental management programme is approved.

Media-specific legislation

Media-specific legislation that will be discussed includes environmental and water

legislation.

3.3.3.1 Environmental legislation

The CARA was the first legislation that specifically made provision for the protection of

wetlands, although it was aimed mainly at agricultural activities.252 Although not specific

to the mining industry, agricultural practices undertaken on rehabilitated mine land are

regulated under CARA. CARA specifies a 10 meter buffer zone to protect the riparian zone

and stream banks from erosion, head cuts and overgrazing.253 Regulation 7 of GN R1048

under CARA deals with the utilisation and protection of wetlands and water courses.254

Regulation 7 adds an additional buffer zone of 10 meters from the outside of a flood

area255 of a watercourse in which no vegetation may be utilised that can impact or

damage natural agricultural resources.256 The regulations further require that grazing is

allowed within 10 meters of a wetland if such grazing does not result in degradation.257

249 Department of Mineral and Energy Affairs 1992 Aide-Memoire for the preparation of environmental management programme reports for prospecting and mining 14.

250 Department of Mineral and Energy Affairs 1992 Aide-Memoire for the preparation of environmental management programme reports for prospecting and mining 16.

251 Department of Mineral and Energy Affairs 1992 Aide-Memoire for the preparation of environmental management programme reports for prospecting and mining 22. The Water Act 54 of 1956 will be discussed in section 3.3.3.2 of this dissertation.

252 Section 6 of CARA for control measures in relation to wetlands or "vleis." Also see section 2.4 and Table 3.

253 Regulation 7 of GN R1048 in GG 9328 dated 30 March 2001 (hereafter GN R1048) issued under section 29 of the Conservation of Agricultural Resources Act 43 of 1983 and Department of Water and Sanitation 2014 Guideline to regulate activities/developments affecting wetlands 24.

254 GN R1048. 255 "Flood area" is defined as follows: "in relation to a water course, [flood area] means the area which in

the opinion of the executive officer is flooded by the flood water of that water course during a 1 in 10 years flood" in section 1 of CARA.

256 "Natural agricultural resources" is defined in section 1 of CARA as "the soil, the water sources and the vegetation, excluding weeds and invader plants."

257 Regulation 7 of GN R1048 in GG 9328 of 30 March 2001.

43

Proposed cultivation within the 10 meter buffer zone is subject to authorisation and

existing cultivation can continue if the area under cultivation is sufficiently protected from

erosion.258

The predecessor of the NEMA, namely the Environmental Conservation Act 73 of 1989

(hereafter the ECA), regulated only a few environmental facets.259 The ECA provided

regulations for environmental impact assessment, but none related to mining activities,

leaving the environmental impact of mining to be regulated by the mining legislation.260

Listed activity 7 of the ECA regulations related to "The reclamation of land below the

high-water mark of the sea and in inland water including wetlands."261 The then Minister

of Environmental Affairs and Tourism issued a policy under section 2 of the ECA stating

that:

All responsible government institutions must apply appropriate measures based on sound scientific knowledge, to ensure the protection of designated ecologically sensitive and unique areas for example … wetlands …

The policy was not enforced and it is not possible to determine its effect on the protection

of wetlands at the time.262

3.3.3.2 Water legislation

The Water Act 54 of 1956 "codified existing law with a consolidation of earlier legislation

and common law precepts."263 It shifted the regulation of water supply from agriculture

to the mining and industrial sectors by replacing the Irrigation and Conservation of Waters

258 Department of Water and Sanitation 2014 Guideline to regulate activities/ developments affecting wetlands 25. Regulation 7(3) of GN R1048 in GG9328 of 30 March 2001.

259 See Kidd Environmental Law 3 and Rabie "Environmental Conservation Act" 99-119. Glazewski Environmental Law in South Africa 7.1 states "It (the Environment Conservation Act) was not particularly effective, it’s stated purpose being to co-ordinate environmental matters within government, and did not include any substantive provisions regarding environmental management."

260 Ridl and Couzens 2010 PER 106 indicate that "historically, the mining industry in South Africa was not subject to EIA requirements – being specifically exempted under the old regulations." The old regulations refers to GN R1182 in GG 18261 of 5 September 1997 issued under sections 26 and 28 of the Environmental Conservation Act 72 of 1989 (hereafter ECA). Refer to section 3.2.1 of this dissertation.

261 GN R1182 and GN R1183 in GG 18261 of 5 September 1997 1997 issued under sections 26 and 28 of the Environmental Conservation Act 72 of 1989 (hereafter ECA)..

262 Rabie "Environmental Conservation Act" 99-119 and Glazewski Environmental Law in South Africa 7.1.

263 Godden 2005 JOEL 197.

44

Act 8 of 1912.264 In the Water Act 54 of 1956 the right to use water was based on riparian

principles, where preferential rights to use water were conferred by the location of the

water resource in relation to land.265 The Water Act 54 of 1956 made a distinction

between public and private water, resulting in different provisions governing the source

of water and the lawful entitlement to use such water.266 Private and public water,

respectively were defined as:267

Private water: all water which rises or falls naturally on any land or naturally drains or is led onto one or more pieces of land which are the subject of separate original grants, but is not capable of common use for irrigation purposes.

Public water: any water flowing or found in or derived from the bed of a public stream whether visible or not.

The Water Act 54 of 1956 did not make provision for the management or protection of

wetlands.268 This may perhaps be attributed to a lack of knowledge about the protection

of wetlands at the time, as well as the fact that wetlands were often regarded as being

privately owned and treated as private water with the right of use exclusive to the land

owner.269 The exclusive right to use water was limited by certain other sections of the

Water Act 54 of 1956, such as sections 12 (the use of water for industrial purposes), 21

(the purification and disposal of water used for industrial purposes and effluent), 22 (the

prevention of water pollution), 23 (the pollution of water to be an offence) and 24

(directions by the director-general in connection with water pollution).270 Under the Water

Act 54 of 1956 permits were required for the use of public water.271 These restrictions

264 Tewari 2009 Water SA 701; Van der Schyff and Pienaar 2007 LEAD 182. Also see Breedt and Dippenaar 2013


265 Preamble of the Water Act 54 of 1956 and CPH Water "Trade in Water Rights" 12. 266 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 140. 267 Section 5 of the Water Act 54 of 1956. Also see Breedt and Dippenaar 2013


268 Breedt Understanding subterranean hydrology in the delineation of wetlands 45. 269 O’ Keeffe et al "Freshwater Systems" 295 and Kidd Environmental Law 368 in Breedt Understanding

subterranean hydrology in the delineation of wetlands 11 and Breedt and Dippenaar 2013


270 Sections 12, 21–24 of the Water Act 54 of 1956. O’Keeffe et al "Freshwater Systems" 295 indicate that the only restriction to the landowner was that he could not pollute wetlands.

271 O’Keeffe et al "Freshwater Systems" 295.

http://gwd.org.za/sites/gwd.org.za/files/02%20N%20Breedt_A%20summary%20of%20Wetland%20Legislation.pdf






45

were applicable only to public streams272 and not to wetlands on privately owned land.

Wetlands were thus not sufficiently protected, a fact which posed a major threat to these

ecosystems.273 Historic mining legislation gave water rights to certain people as a right

ancillary to or attached to an existing mining right274 without consideration to wetlands.

During the 1970s and 1980s a number of Acts protected wetlands in a fragmentary

manner. 275 These Acts had varied objectives and did not include the protection of all

types of wetlands.276 The Mountain Catchment Areas Act 63 of 1970 provided the

protection of wetlands situated within mountain catchments, while the Lakes Areas

Development Act 39 of 1975 provided the protection of wetlands included in declared

lake areas.

In 1990 a Wetland Conservation Bill was tabled in Parliament with the intent to give effect

to the Ramsar Convention.277 The Bill was discarded, however278 the reasons for

discarding the Bill are unknown. The long title of the Bill provided for:279

The incorporation of the Ramsar Convention into South Africa`s domestic legislation, the prohibition of prospecting or mining in listed wetlands, the prohibition of detrimental activities in wetlands and listed wetlands and the prohibition of detrimental activities to catchment areas.

The Wetland Conservation Bill provided for the Minister280 to prohibit by notice in a

Government Gazette281 "any activity in any wetland or listed wetland which in his or her

opinion is likely to affect adversely the ecological character of such wetland." The Minister

would have been able under the Wetland Conservation Bill to grant conditional permission

to continue with planned mining within a wetland, but could have excluded activities from

272 It can be concluded that only wetlands associated with public streams such as valley bottom wetlands would have required a section 20 permit under the Water Act 54 of 1956.

273 O’Keeffe et al "Freshwater Systems" 295. 274 Mabiletsa and Du Plessis 2001 SAJELP 202. 275 Only water-related Acts are discussed here. Refer to the preceding section on environment-related

Acts. 276 Breedt Understanding subterranean hydrology in the delineation of wetlands 45. 277 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 143. 278 Booys An assessment of the adequacy of the present legal regime for the conservation of wetlands

and estuaries in South Africa 6. 279 Booys An assessment of the adequacy of the present legal regime for the conservation of wetlands

and estuaries in South Africa 105. 280 In this case the Minister was the then Minister of Environmental Affairs and Tourism. 281 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 143.

46

being undertaken, except with his or her written permission, if such activities impacted

negatively on a catchment area and wetlands.282

3.4 Between 1998 and 2014

The following section will discuss sector-specific (mining) legislation and media-specific

(environmental and water) legislation as applicable from the promulgation of the NWA

and NEMA in 1998 to the implementation of the so called "One Environmental System"

(hereafter OES) in 2014.


Since 1 May 2004 the MPRDA has been the major sector legislation stipulating how to

conduct mining operations lawfully.283 This, prior to 7 December 2014, included the

regulation of environmental management within the mining industry.284 In the preamble

of the MPRDA the state’s responsibility to protect the environment for current and future

generation is affirmed.285 In 2004 the sections relevant to environmental matters were

promulgated with a new set of regulations286 that provided guidelines on the

environmental impact assessment process in the mining sector.287 The 2004 regulations

replaced the Aide Memoire (see section 3.3.3.1), which became obsolete.288 Chapter 4 of

the MPRDA covered the process for the application and approval of reconnaissance,

prospecting and mining rights. A prerequisite for the granting of a prospecting and mining

right was that the activities would not result in the unacceptable pollution and ecological

degradation of the environment.289 The application for a prospecting and mining right

should have been accompanied by an environmental management programme290

282 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 143. 283 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 144. 284 Section 14(2) of the National Environmental Management Amendment Act 62 of 2008; also see De

Ryhove (eds) 2014 http://www.polity.org.za/article/a-new-era-for-environmental-management-of-mining-projects-2014-09-05.

285 Kidd Environmental Law 221. 286 GN R527 in GG 26275 dated 23 April 2004 hereafter GN R527 issued under section 107(1) of the

MPRDA read with the provisions of section 14 of the Interpretation Act 33 of 1957. 287 Regulation 48 of GN R527. Also see Van Heerden A comparative analysis of EIA report quality before

and after 2006 in South Africa 15. 288 Van Heerden A comparative analysis of EIA report quality before and after 2006 in South Africa 15.

For a discussion on the Aide Memoire, refer to section 3.3.2. 289 Section 23(1)(d) of MPRDA. 290 Section 38 of the MPRDA.

http://www.polity.org.za/article/a-new-era-for-environmental-management-of-mining-projects-2014-09-05


47

(hereafter EMPr) and such a right was granted only upon approval of the EMPr.291 The

MPRDA made no reference to the regulation of wetlands. The only requirements for

protection thereof would have been included in the EMPr at the discretion of the

environmental assessment practitioner or applicant who drafted the EMPr. The MPRDA

regulations specified the format in which an EMPr had to be drafted and the information

to be supplied.292 Specific reference to wetlands and the location of mining activities in

relation thereto is found within the MPRDA regulations:293

No sand dump or slimes dam shall be established on the bank of any stream, river, dam, pan, wetland or lake without written permission of the Minister in consultation with the relevant Government department and upon such conditions as he or she may determine and as approved in the environmental management

programme or environmental management plan, as the case may be.

The NEMA principles applied to all rights granted under the MPRDA.294 The NEMA

principles required that impacts on biodiversity and ecological integrity were avoided and

if they cannot be avoided be minimised or mitigated,295 implying that wetlands or the

impact of mining on wetlands should have been considered.


This section will discuss the two most significant pieces of environmental (and water)

legislation, namely the NEMA and NWA as introduced in 1998.


The NEMA commenced on 29 January 1999. The purpose of the NEMA296 is to provide for

co-operative governance through establishing decision-making principles on matters

affecting the environment;297 institutions that will encourage co-operative governance;

and procedures for coordinating environmental functions implemented by organs of state.

This is important for the discussion on the regulation of wetlands, as the regulating

291 Section 23(5) of MPRDA. 292 Regulations 50 and 52 of GN R527. 293 Regulation 69(5) of GN R527. 294 Section 37 of the MPRDA. 295 Section 2 of NEMA and Department of Environmental Affairs et al 2013 Mining and Biodiversity

Guideline 9. 296 NEMA. 297 Refer to section 2.4 on the inclusion of wetlands within the definition of the "environment."

48

departments298 are divided according to the different environmental media.299 This

fragmentation leads to the fragmented application of environmental legislation.300 The

NEMA regulates environmental authorisations301 and allows the minister or a Member of

an Executive Council (hereafter MEC)302 to publish listed activities303 in terms of which an

environmental assessment has to be undertaken. The principles of NEMA as set out in

Chapter 1 of the Act apply through the country to organs of state that may significantly

affect the environment.304 One such principle highlights the need for specific attention in

the management and planning procedures for sensitive, vulnerable, highly dynamic and

stressed ecosystems such as wetlands.305 This is especially important where wetlands are

subject to significant human resource usage (such as mining).306

The ECA listed activities as published on 5 September 1997307 remained in force till 2

June 2006, when the NEMA environmental impact assessment regulations (2006 EIA

regulations)308 commenced.309 "In terms of both sets of regulations, wetlands were a

listed activity requiring an EIA for projects likely to affect wetlands."310 As already noted311

the ECA listed activities did not include any specific reference to wetlands. Wetlands were

referred to for the first time in a listed activity in GN R386 of 2006 namely.

The dredging, excavation, infilling, removal or moving of soil, sand or rock

exceeding 5 cubic meters from a river, tidal lagoon, tidal river, lake, in-stream dam, floodplain or wetland.

298 A turf war on the regulation of environmental matters in the mining industry has been ongoing between the DMR and DEA. Refer to Du Plessis 2008 South African Public Law 87.

299 Du Plessis 2008 South African Public Law 87 and Du Plessis and Alberts 2014 South African Public Law 452.

300 Du Plessis 2008 South African Public Law 87. 301 Section 24(1) of NEMA. Environmental authorisation as defined in section 1 of NEMA "means the

authorisation by a competent authority of a listed activity or specified activity in terms of this Act, and includes a similar authorisation contemplated in a specific environmental management Act." The definition of "environmental authorisation'" was inserted in section 1 of Act 8 of 200 4 and replaced by section 1(f) of Act 62 of 2008.

302 Section 1 of NEMA defines "MEC" to mean "the Member of the Executive Council to whom the Premier has assigned responsibility for environmental affairs."

303 Section 24(2) of NEMA. "Listed activity", when used in Chapter 5 of NEMA, means an activity identified in terms of section 24(2)(a) and (d).

304 Section 2 of NEMA. 305 Section 2(4)(r) of NEMA. 306 Section 2(4)(r) of NEMA. 307 GN R1182. 308 GN R385, 386 and 387 in GG 28753 of 2 June 2006. 309 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author). 310 Sandham et al 2008 Water SA 156. 311 In section 3.3.3.1.

49

The 2006 EIA regulations came into force for mining operations only on 1 April 2007.312

The 2006 EIA regulations applied from 3 June 2006 to 1 August 2010, when the

regulations were repealed by the 2010 EIA regulations.313 The 2010 EIA regulations were

effective from the 2 August 2010 until 7 December 2014.314 The listed activities in the

2006 and 2010 EIA regulations that specifically referred to mining only commenced on 8

of December 2014.315 While, ertain activities as listed form part of mining operations, such

as the construction of infrastructure that includes roads, electricity transmission and

distribution, dams, diesel and petrol storage tanks, and storm water management

infrastructur,316and required authorisation. Wetlands were included in the definition of

watercourses in the 2010 EIA regulations317 and several listed activities referred to

developmental activities within watercourses.318 The competent authority for the

implementation and decision-making of the above was the DEA, while the competent

authority for the granting of mining rights and the implementation of environmental

requirements under the MPRDA was the DMR.


As indicated before,319 mining has the potential to threaten the availability of water as

well as water quality, if water use and prevention of pollution are not regulated.320 The

protection of the use and quality of water, which is such a scarce resource, has been

placed squarely on the shoulders of the DWS.321 The DWS is mandated to regulate water

use and activities affecting wetlands by protecting wetlands through pollution prevention

measures, determining resource quality management objectives, determining the

312 Ridl and Couzens 2010 PER 80. 313 GN R543, 544, 545 and 546 in GG 33306 of 1 August 2010 issued under sections 24(2), 24(5), 24D

and 24M read with section 47A(1)(b) of NEMA. 314 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with the author). GN R982-GN

R985 in GG 38282 of 4 December 2014. 315 “The listed activities realting to activities that required a prospecting right, mining permit, exploration

right, production right or reconnaissance permit or renewal thereof in terms of the MRPDA (in terms of GN R544 and R545 above) was never put into operation. The 2014 listed activities, listing these same mining activities commenced on 8 December 2014.

316 GN R385-387 in GG 28753 of 2 June 2006 and GN R543-545 and 546 in GG 33306 of 1 August 2010. 317 GN R546 in GG 33306 of 1 August 2010. 318 Activities 9; 11, 18, 37, 29 and 40 in GN R544 in GG 33306 of 1 August 2010 and activity 5 in GN

R545 in GG 33306 of 1 August 2010. Refer to section 2.4 for the definition of watercourse as contained in the NEMA.

319 In section 2.3. 320 Mabiletsa and Du Plessis 2001 SAJELP 202. 321 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 140. Previously the

Department of Water Affairs and Forestry.

50

reserve, and ensuring integrated environmental management principles and practices are

implemented.322 In order to achieve this mandate the NWA was promulgated and

commenced on 1 October 1998. The NWA gives the Minister of the Water and Sanitation

the mandate to equitably allocate the use of water and to protect water resources.323 It

should be noted that although the NWA is discussed in this dissertation in the period 1998

to 2014, the Act is currently still applicable, and only changes to the regulations and

guidelines relevant post-2014 will be discussed in section 3.5.2.

The NWA ensures that nothing may adversely impact on water resources (including

wetlands - refer to Chapter 2, where the inclusion of the term "wetland" in the definition

of water resource and watercourse is dealt with324) without an authorisation under the

Act.325 A person requires a licence in terms of section 40 of the NWA to use water, if no

other entitlement applies.326 Section 22 of the NWA states that a person may use water

without a water use licence only if: (a) the use is for purposes including reasonable

domestic use, gardening, animal watering, firefighting and recreational use as set out in

Schedule 1 of the NWA; (b) the use is the continuance of an existing lawful water use

(hereafter ELWU) as per section 34 of the NWA; (c) the use is in terms of a General

Authorisation or licence under the NWA; or (d) the authority has dispensed with the

licensing requirements under section 22(3).

Section 21 of the NWA identifies eleven water uses.327 Mining is not explicitly listed as a

use under section 21 of the NWA, but most of the section 21 water uses occur during the

mining process.328 The dependencies on and interest of society in wetlands are

materialised through section 21(c) and (i) water uses.329 Section 21(c) refers to "impeding

and diverting the flow of water in a watercourse" and section 21(i) to "altering the bed,

322 Department of Water and Sanitation 2014 Guideline to regulate activities/developments affecting wetlands 16. Schedule 4 of the Constitution. Also see section 1 of the NWA for the definition of "Department".

323 Preamble of NWA. 324 See the definition in Chapter 2. 325 Section 2 of the NWA and Kidd Environmental law 136. 326 Department of Water Affairs 2007 External guideline generic water use authorisation application

process 4. 327 Section 21(a) to (k) of the NWA. 328 Mabiletsa and Du Plessis 2001 SAJELP 203. 329 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting

watercourses 3.

51

banks, courses or characteristics of a watercourse."330 The definition of a section 21(c)

water use is "causing an obstruction to the flow of water in a watercourse, or diverting

some or all of the flow in or from a watercourse."331 A section 21(c) water use does not

cause the loss of water but impacts on the flow regime of the watercourse and can be

temporary or permanent in nature.332 The definition of a section 21(i) water use includes

any changes affecting the following:333

The energy of the watercourse;334

The channelisation of streams;335

The morphology such as the bed and banks of a watercourse including changes

affecting the riparian and instream characteristics;

The physical characteristics of the watercourse such as the removal of vegetation

and changes to the geohydrology and geology that affect the feed of water to

systems such as wetlands;

The chemical characteristics of the watercourse such as temperature, pH or other

variables;

The flood dynamics;

The biological characteristics of the watercourse such as changes in habitat that

impact on the composition of fauna.

Although an activity that requires a section 21(i) water use may not directly affect the

flow of water as contemplated in section 21(c), any activity in the vicinity of a watercourse

330 Section 21(c) and (i) of the NWA. Refer to section 2.4 of this dissertation on the inclusion of the term "wetlands" in the definition of "watercourse."

331 Department of Water Affairs 2007 External Guideline: section 21(c) and (i) water use authorisation application process 1.



334 Such as the straightening of a river, which leads to increased energy and increased erosion as a new equilibrium is adapted to.

335 Department of Water and Sanitation 2016 Section 21(c) and (i) water use training.

52

may affect runoff and lead to changes in the flow regime of the watercourse.336 The

regulation of section 21(c) and (i) water uses is complex as it has to address technical

aspects associated with the prominence and characteristics of watercourses, and

engineering solutions for activities impacting on watercourses while taking into

consideration socio-economic aspects.337 The complexity is compounded by the fact that

it is unclear what exactly is meant by the "characteristics" of a watercourse, and the

interpretation of the term is very open and broad. The NWA does not define the concept

of "characteristics of a watercourse," but terms such as "resource quality", "riparian

habitat"338 and "instream habitat"339 are defined and encompass what is intended.340

Resource quality, for example, is defined as:341

The quality of all the aspects of a water resource including – the quantity, pattern, timing, water level and assurance of instream flow; the water quality, including the physical, chemical and biological characteristics of the water; the character and condition of the instream and riparian habitat; and the characteristics, condition and distribution of the aquatic biota.

In the light of the above the DWS in 2005 published a manual "describing the indicators

and methods for determining whether an area is a wetland or riparian area" as well as

the methods to delineate such an area.342 This manual provides the Regulator with a

"standardised, affordable and auditable method" to define wetlands spatially.343 If mining

activities impede, divert or alter a wetland, a water use licences application should be

lodged with the DWS. The risk the water use poses to the wetland needs to be highlighted

in the information submitted to the DWS during the water use authorisation process and

the application should indicate the water use activities in relation to the regulated area

and buffers of the wetland such as the riparian areas, the 1:100 year flood line, and the



338 "Riparian habitat" is defined by section 1 of the NWA as "the physical structure and associated vegetation of the areas associated with a watercourse which are commonly characterised by alluvial soils, and which are inundated or flooded to an extent and with a frequency sufficient to support vegetation of species with a composition and physical structure distinct from those of adjacent land areas."

339 "Instream habitat" is defined by section 1 of the NWA as "the physical structure of a watercourse and the associated vegetation in relation to the bed of the watercourse."

340 Section 1 of the NWA and Department of Water Affairs 2012 Operational policy to regulate development and activities affecting watercourses 2.

341 Section 1 of the NWA. 342 Breedt Understanding subterranean hydrology in the delineation of wetlands 16-17. 343 Breedt Understanding subterranean hydrology in the delineation of wetlands 17.

53

500 meter radius from the boundary of the wetland.344 The DWS Guideline stipulates that

an application should be accompanied by an environmental management plan and an

environmental impact assessment, a wetland delineation and assessment report, and a

rehabilitation plan. However, these requirements are not specified in the NWA.345

Historic water rights ancillary to mining rights are recognised in terms of section 4(2) of

the NWA as constituting a lawful water use and continue to exist until reviewed by the

DWS.346 An ELWU means a water use which has taken place during a period of two years

immediately before the commencement of the NWA (1 October 1998) and which was

undertaken lawfully under any law which was in force immediately before the

commencement of the NWA.347 ELWUs include stream flow reduction activities,348 a

controlled activity349 or activities that have been declared ELWUs.350 A person may

continue with an ELWU subject to the conditions under which it was exercised,351 its

replacement by a water use licence or any other limitation in terms of the NWA.352 The

responsible authority may, in order to verify if a water use is a continuation of an ELWU,

by notice require a water user claiming an entitlement to the water use to apply for

verification of the water use.353 As alluded to before,354 a section 21(c) and (i) water use

is an ELWU based on whether the wetland was altered, impeded or diverted at the time

of the use and whether the watercourse was regarded as private or public water.

Section 39 of the NWA stipulates that the DWS may, subject to Schedule 1, by notice in

a Gazette "(a) generally; (b) in relation to a specific water resource or (c) within an area

specified in the notice" authorise a water use. General Authorisations published in terms


345 Section 28 of the NWA and Department of Water and Sanitation 2014 Guideline to regulate activities/developments affecting wetlands 17.

346 Mabiletsa and Du Plessis 2001 SAJELP 203. 347 Section 32 of the NWA. Such as those discussed in section 3.3.3.2. 348 Section 32(1) of the NWA. 349 Section 37(1) of the NWA stipulates that "the following are controlled activities: (a) irrigation of any

land with waste or water containing waste generated though any industrial activity or by a waterwork; (b) an activity aimed at the modification of atmospheric precipitation; (c) a power generation activity which alters the flow regime of a water resource; (d) intentional recharging of an aquifer with any waste or water containing waste; and (e) an activity which has been declared as such under section 38."

350 Section 33 of the NWA. 351 Department of Water Affairs 2007 External guideline generic water use authorisation application

process 4. 352 Section 34 of the NWA. 353 Section 35 of the NWA. 354 In section 3.3.3.2.

54

of section 39 relieve a water user from the need to obtain a water use licence.355 If a

mine uses water as defined in section 21 of the NWA and the water use falls within the

ambit of a General Authorisation the mine does not have to apply for a water use licence

for that specific use.356 The Department published two General Authorisations for section

21(c) and (i) water uses; namely, GN R398 of 26 March 2004 and repealed by GN R1199

in 2009 and GN R1198 of 18 December 2009.357 Only GN R1199 is applicable to this

dissertation.358

GN R1199 defines section 21(c) and (i) water uses as follows:359

"Altering the bed, banks, course and characteristics of a watercourse" means any change affecting the resource quality within the riparian habitat or the 1:100 year

flood line, whichever is the greater distance.

"Diverting the flow" means a temporary or permanent structure causing the flow of water to be rerouted in a watercourse for any purpose.

"Impeding the flow" means the temporary or permanent obstruction or hindrance to the flow of water in a watercourse by a structure built either fully or partially in or across a watercourse.360

GN R1198 stipulates that if a water user rehabilitates a wetland for conservation purposes

the water user does not need to apply for a water use licence under section 21 of the

NWA for "impeding or diverting the flow of water in a watercourse", or "altering the bed,

banks, course or characteristics of a watercourse."361

GN R1199 relieves a water user who wishes to perform the water use as described in

sections 21(c) and (i) of the NWA, as defined above, of the requirement to obtain a water

use licence.362 Wetlands, however, are regarded as extremely sensitive environments and

355 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author). 356 Section 22 of the NWA. 357 GN R1199 was repealed by GN R509 on the 26 August 2016. Refer to section 3.5 for a discussion of

GN R509. 358 GN R1198 does not directly apply to the impact of mining activities on wetlands, but only the

rehabilitation thereof for conservation purposes, and will not be discussed further. 359 Regulation 2 of GN R1199. 360 The definition of impeding has been changed in the draft amendments to the General Authorisation

published in GN R1180 by the removal of the reference to structures. Also refer to GN R509. 361 Regulation 1 of GN R1198. The water user responsible for the rehabilitation of the wetland needs to

comply with the conditions as set out in GN R1198. 362 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author).

55

are therefore excluded from the section 21(c) and (i) water use General Authorisation.363

The exclusion in regulation 6 of GN R1199 includes the rehabilitation of a wetland and

activities within a 500 meter radius of the boundary of a wetland. In practical terms this

exclusion creates a 500 meter buffer zone around wetlands where the General

Authorisation will not apply and activities within this buffer zone require a water use

licence.364 Further, the regulations do not apply if a water user applied for any other

section 21 water use, nor do they apply to sewerage, pipelines and water and wastewater

treatment works.365 GN R1199 further sets out the conditions that section 21(c) and (i)

water users need to comply with.366

In terms of section 22 of the NWA a lawful water use is subject to limitation or restriction

in terms of legislation such as the regulations drafted by the DWS in relation to the

protection of water resources in the mining industry.367 One such regulation is GN R704,

which pertains to the use of water by the mining industry. GN R704 clearly sets out the

requirements for mining within or nearby any watercourse, including wetlands.368 These

requirements include a restriction on locality and material use and the requirements for

applying for exemption to mine in areas in close proximity to watercourses and

wetlands.369 Regulation 4 provides for a restriction on the locality of mining activities and

the associated infrastructure. In order for mining and related activities to be undertaken

within the restricted locations indicated in regulation 4, the Minister may in writing

authorise an exemption from the requirement of regulation 4 upon application from the

mine.370

The DWS Water Use Authorisation Application Process External Guideline371 states that:

363 Regulation 6 of GN R1199 and Department of Water Affairs 2007 External Guideline: section 21(c) and (i) water use authorisation application process 2.

364 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author). 365 Regulation 6(c) and (d) of GN R1199. 366 Regulation 7 of GN R1199. 367 Mabiletsa and Du Plessis 2001 SAJELP 203. 368 Regulation 4 of GN R704 and Stoop A framework methodology for the cumulative impact assessment

of wetlands 49. 369 Regulations 3, 4 and 5 of GN R704 and Stoop A framework methodology for the cumulative impact

assessment of wetlands 49. 370 Regulation 3 of GN R704. 371 Department of Water Affairs 2007 External Guideline: generic water use authorisation application

process 9.

56

Any activity closer than 500 meters upstream or downstream from the boundary of any wetland or estuary is a section 21(i) water use (own emphasis added).

This is in contradiction to the definition of a section 21(i) water use that indicates that

the mere undertaking of an activity within the 500 meter buffer zone of a wetland is not

regarded as a water use if a change in the resource quality has not occurred.372 The DWS

Water Use Authorisation Application Process Internal Guideline in Appendix A "the

proposed new format for integrated licences" indicates the following proposed license

condition:373

Construction activities must not take place within the 1:100 year flood-line or within a horizontal distance of 100 meters from any watercourse, estuary, borehole or well, whichever is the greatest, unless authorised by this licence.

This is contradictory to the 500 meter buffer indicated in the GN R1198 exclusion, but

aligns with the 100 meter buffer contained in GN R704. The question remains, therefore,

whether a water user needs to obtain a water use licence for activities within the 500

meter buffer exclusion as indicated in GN R1198 or the 100 meter buffer as indicated in

the Guideline.

To support the regulation and protection of watercourses the DWS has developed an

operational policy to "regulate development and activities affecting watercourses."374 The

vision of this policy is:375

That the ecological integrity of watercourses of this country are protected, sustained, and enhanced, through integrated management, regulatory and control measures in order to promote sustainable optimal socio-economic development and use – where human needs are thus met in balance with the needs of the aquatic environment.

This vision is reiterated in the Departmental Guideline to regulate activities affecting

wetlands.376 The guiding principles of the operational policy include, amongst others, the

protection and regulation of watercourses at catchment and local level of government

372 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author). 373 Department of Water Affairs 2007 Internal Guideline: generic water use authorisation application

process 40. 374 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting

watercourses 4. 375 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting

watercourses 4. 376 Department of Water and Sanitation 2014 Guideline to regulate activities/ developments affecting

wetlands 18.

57

through integrated approaches, and indicate that the management of watercourses is not

the sole mandate of the DWS.377 The operational policy is aimed at the DWS officials,

other relevant government authorities, and the water users.378 Activities taking place

within the regulated area of a watercourse are therefore regulated by section 21(c) and

(i) of the NWA, but activities that fall outside the regulated area may also pose a risk to

the watercourse and require regulation.379 The 2014 Guideline to regulate

activities/developments affecting wetlands is based on the following principles:380

(a) Wetlands provide valuable social, economic and environmental functions;

(b) The degradation of wetlands is a reality and concerted efforts are required to protect

wetlands in order to ensure sustained functions for water and food security;

(c) Wetlands are interlinked to other water resources and their surrounding

environments, therefore regulation should be focused on catchment and local level

through integrated processes; and

(d) The protection of wetlands is not only the mandate of the DWS and requires societal

and governmental support.

Wetland delineation needs to be conducted as per the 2005 DWS Guideline.381 This was

confirmed in the State v Stefan Frylink and Mpofu Environmental Solutions CC (hereafter

the Frylink case) that stated "these guidelines are the means to apply to determine if it

is a wetland."382 The Frylink case further confirmed that the 2005 Guideline does not

require all the requirements383 highlighted in the Guideline to be present, and that in

377 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting watercourses 5. The guiding principles are founded on the principles of the NWA, also recognise that watercourses provide a valuable social, economic and environmental function, and that the degradation of watercourses requires concerted efforts to ensure that these functions are maintained and protected.



380 Department of Water and Sanitation 2014 Guideline to regulate activities/ developments affecting wetlands 18. This is a summary of the function and importance of wetlands and the degradation thereof by human activity as discussed in chapter 2.

381 Department of Water and Sanitation 2005. A practical field procedure for identification and delineation of wetlands and riparian areas and Department of Water and Sanitation 2009 Updated Manual for the Identification and Delineation of Wetlands and Riparian Areas.

382 The Frylink case para 36. 383 Refer to Chapter 2, section 3.

58

order for a wetland to be delineated only one of the three requirements needs to be

met.384 The legal consequence of the case is that the Guidelines must therefore be

followed.385 These Guidelines, although authored by the DWS, should be used in all

authorisations of other government departments such as the DEA and DMR.386 What is

evident from the Guidelines is that an assessment needs to be undertaken in a scientific

manner prescribed by the Guidelines as part of the wetland assessment to support all

authorisation applications.387

A number of court cases, specifically dealing with the mining activities within wetlands,

under the NEMA EIA regulations and the NWA highlight the requirements discussed in

the preceding paragraphs.388 In the 2009 case of S v Golfview Mining (Pty) Ltd (hereafter

the Golfview case) 389 Golfview Mining (Pty) Ltd pleaded guilty under section 28(14)(a)390

of the NEMA to wrongfully and negligently committing an act that is likely to have a

significant detrimental effect on the environment by mining within a wetland. The accused

further pleaded guilty to wrongful and negligent water use under the NWA by "impeding

and diverting the flow of water in a watercourse"391 and "altering the bed, banks, course

or characteristics of a watercourse."392 Golfview Mining (Pty) Ltd was sentenced to a fine

of R1 000 000, payment of which was suspended for 5 years on condition that the mining

company did not contravene section 28(14)(a) and 24F(1)(a) of NEMA and section 151(1)

read with section 21(c) and (i) of the NWA.393 The court further ordered that a

rehabilitation plan as prepared by specialists in consultation with the DWS be

implemented and a payment of R1 000 000 be made to the Water Research Council and

R1 000 000 to the Mpumalanga Tourism and Parks Agency.394 In the Frylink case395 the

defence argued that the NEMA does not contain a definition of the term "wetland" and

384 The Frylink case para 36. 385 The Frylink case para 36. 386 The Frylink case para 36. 387 The Frylink case para 41. 388 Section 3.4.2. 389 State v Golfview Mining (Pty) Ltd case number ESH82/11 of 2009 para 8.1 (the Golfview case). 390 Read with sections 1, 28(15), 32, 34, 34B, 34C and 34H of the NEMA. 391 Section 21(c) of the NWA. 392 Section 21(i) of the NWA. Para 8.2 of the Golfview case. 393 Para 10.3 of the Golfview case. 394 Para 10.4 of the Golfview case. 395 The Frylink case.

59

that the accused could not be found guilty in terms of the NEMA.396 The definition of

"wetland" was subsequently included in listing notice 1 of the EIA regulations.397

In 2012 Anker Coal prospected within a wetland in contravention of the NEMA and the

NWA.398 Subsequently the directors were convicted and sentenced for failing to comply

with the environmental and mining legislation. This was the first matter in which the

company and directors399 were held criminally liable following a plea and sentence

agreement. Three fines in total of R180 000 were suspended by the court for five years

on certain conditions. A further R80 000 was paid to the Mpumalanga Tourism and Parks

Agency and R144 000 to the affected landowner of the Steenkoolspruit farm in

compensation.400

In 2013 in S v Nkomati Anthracite (Pty) Ltd (hereafter the Nkomati case) Nkomati

Anthracite (Pty) Ltd pleaded guilty to the contravention of NEMA401 for the:402

dredging, excavation, infilling, removal or moving of soil, sand or rock exceeding five cubic meters from a river, tidal lagoon, tidal river, lake in stream dam,

floodplain or wetland.

Further, Nkomati Anthracite (Pty) Ltd pleaded guilty to the contravention of section

151(1)(a) of the NWA for "impeding and diverting the flow of water in a watercourse"

and "altering the bed, banks, course or characteristics of a watercourse."403 The accused

was sentenced to a fine of R1 000 000 that was suspended for 5 years and was ordered

to pay a remedial amount of R4 000 000 to the Environmental Management Inspectorate

of the Department of Environmental Affairs.404 In 2014 the managing director of a mining

company known as Blue Platinum Ventures was convicted of a criminal offence under the

396 Para 39 of the Frylink case. 397 Regulation 2 of GN R983. 398 Para 6.1 of The State v Anker Coal and Mineral Holdings (Pty) Ltd case number ESH8/11 of 17 April

2012 (hereafter the Anker Coal case). 399 Para 7.1.2.1 of the Anker Coal case. 400 Paras 8, 9 and 10 of the Anker Coal case as in Cross 2016 Mervyn Taback Incorporated (confidential

source, on file with author). 401 Section 24F(1)(a) of NEMA read with section 24F(2)(a) and sections 1, 24(2), 24D, 24F(4) and 34 read

together with GN R386 in GG 28753 of 21 April 2006 and section 332(1) of the Criminal Procedures Act 51 of 1997.

402 Para 1 in S v Nkomati Anthracite (Pty) Ltd Case number 5H412/3 of 25 August 2013 (hereafter the Nkomati case).

403 Paras 5 and 7 of the Nkomati case. 404 Paras 1 and 2 of the Nkomati case.

60

NEMA.405 The managing director was sentenced to 5 years imprisonment, suspended on

condition that the managing director did not again commit the same or a similar offence,

and that the area be rehabilitated.406

3.5 Post-2014

The so-called OES was implemented on 7 December 2014.407 The outcome of the OES is

that the environmental aspects related to the mining industry are now governed by the

NEMA. That includes the streamlining of the licensing process for mining, environmental

authorisations and water use licensing within an agreed fixed period.408 The Minister of

Mineral Resources is the competent authority for the issuing of mining right authorisations

under the MPRDA and any environmental authorisation for the mining industry under the

NEMA, while the Minister of Water and Sanitation is the competent authority for the

issuing of water use licences under the NWA.409


Section 5 of the MPRDA deals with the legal rights and obligations of a holder of a

prospecting or mining right. Section 5(1) indicates that mining and prospecting is a

"limited real right in respect of the mineral and the land to which such right relates."

Section 5(3)(d) states that subject to the MPRDA a holder of a mining or prospecting

right may, subject to the NWA:

Use water from any natural spring, lake, river or stream, situated on, or flowing through, such land or from any excavation previously made and used for prospecting, mining, exploration or production purposes, or sink a well or borehole required for use relating to prospecting, mining, exploration or

production on such land.

405 As brought about by the amendments to the environmental legislation through the National Environmental Management Laws Amendment Act 25 of 2014 (hereafter NEMLAA), the National Water Amendment Act 27 of 2014 as well as the mineral legislation through the Mineral and Petroleum Resources Development Amendment Act 49 of 2008. Centre of Environmental Rights 2015 Promotion transparency, accountability and environmental compliance: holding company directors accountable for environmental crimes.

406 S v Blue Platinum Ventures (Pty) Ltd and Another Case number RN126/13 of 9 January 2014. 407 Chapter 5 of NEMA and Water Research Commission 2015 Wetland rehabilitation in a mining

landscape 12. 408 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 12. 409 Section 3 of the MPRDA, section 24C of NEMA and section 22 of the NWA. Also see Water Research

Commission 2015 Wetland rehabilitation in a mining landscape 12.

61

In addition to the requirements in section 5 of the MPRDA, section 25(2)(c) requires of

the holder of a mining right to actively conduct mining in accordance with the mining

works programme.410 On 7 December 2014 section 5A(a) of the MPRDA commenced,

indicating that no person may conduct mining for or produce any mineral or commence

with any work incidental thereto without an environmental authorisation.411 The definition

of "environmental authorisation" given in the MPRDA reads that the term has "the

meaning assigned to it in the NEMA."412 The NEMA definition reads "the authorisation by

a competent authority of a listed activity or specific activity in terms of this Act."413 It is

important for mines operating within an EMPr approved under the MPRDA to take note

of the transitional arrangements contained in the NEMA. The transitional arrangements

as contained in the National Environmental Management Laws Amendment Act 25 of

2014 (hereafter NEMLA) have been marked with legal uncertainty and a failure to provide

guidance to the mining industry.414 The intention appears to have been that an EMPr

approved in terms of the MPRDA would have to be deemed an environmental

authorisation in terms of the NEMA.415 This inference can be drawn from section 38B(1)

of the Mineral and Petroleum Resources Development Amendment Act 49 of 2008 which

states:416

An environmental management plan or environmental management programme approved in terms of this Act before and at the time of the coming into effect of the National Environmental Management Act, 1998, shall be deemed to have been approved and an environmental authorisation been issued in terms of the National Environmental Management Act.

The Mineral and Petroleum Resources Development Amendment Act 49 of 2008 is not

yet enacted, as the Mineral and Petroleum Resources Development Bill [B15B-2013] was

referred back to the National Assembly for reconsideration by the President in January

410 The impact on this requirement due to changing environmental legislation on wetland protection will be discussed in section 4.8 of this dissertation.

411 Mining and prospecting rights are limited in the sense that mining may commence only with an environmental authorisation.

412 Section 1 of the MPRDA. The definition of environmental authorisation was inserted by section 1(g) of the MPRD Amendment Act 49 of 2008 with effect from 7 June 2013, to be in line with the "One Environmental System."

413 Section 1 of the NEMA. The definition also refers to authorisations in terms of specific environmental management acts.

414 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author). 415 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author). 416 Section 38B(1) of Mineral and Petroleum Resources Development Amendment Act 49 of 2008.

62

2015, due to the fact that the bill would not "pass constitutional muster."417 However

with the commencement of the OES, section 38B of the MPRDA did not commence.418

The transitional arrangements as in the National Environmental Management Amendment

Act 62 of 2008 (hereafter NEMAA) that commenced on 1 May 2009 indicated that an EMPr

approved in terms of the MPRDA immediately before the commencement date of the

provision of the NEMAA must be regarded as having been approved in terms of the

amended NEMA.419 This transitional arrangement does not specify that the said EMPr

approved under MPRDA is seen as an environmental authorisation under the NEMA.420

The NEMLA Bill 2015 in its current form seeks to address this transitional gap by including

the following subsection to the NEMAA:

Section 12(4): An environmental management plan or programme approve in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 [immediately before the date on which this Act come into operation] on or before 2 September 2014 shall be deemed to have been approved in terms of the [principal Act] National Environmental Management Act 107 of 1998 and an

environmental authorisation issued [by this Act].



The NEMA is the framework legislation for the protection of the environment.421

Framework legislation "aims to define overarching and generic principles."422 Chapter 1

of the NEMA sets out the national environmental management principles. One such

principle requires that wetlands require specific attention in management and planning,

particularly in cases of significant human resource usage and development pressure.423

This is due to the fact that wetlands are seen as "sensitive, vulnerable, highly dynamic

417 South African Government 2015 http://www.gov.za/presidency-referral-mineral-and-petroleum-resources-development-amendment-bill-national-assembly. The Mineral and Petroleum Resources Development Bill [B15B-2015] is currently under consideration by the National Assembly. The Bill was referred to the National House of Traditional Leaders for comment in March 2016.

418 Proc 17 in GN 36541 dated 6 June 2013 and Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author).

419 Section 12(4) of the NEMAA. 420 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author). 420 Section 12(4) of the NEMAA. 421 Kidd Environmental Law 35. 422 Du Plessis and Nel 2001 SAJELP 1. 423 Section 2(4)(r) on NEMA.

http://www.gov.za/presidency-referral-mineral-and-petroleum-resources-development-amendment-bill-national-assembly


63

or stressed ecosystems."424 Section 37 of the MPRDA indicates that the principles

contained in section 2 of the NEMA apply to all prospecting and mining operations and

related activities.425 These principles provide the guideline for the interpretation,

administration and implementation of the environmental requirements of the MPRDA.426

As previously stated, since December 2014427 the NEMA has governed environmental

aspects related to mining, where prior to December 2014 they were governed by the

MPRDA. The mining terms "holder", "holder of an old order right", "mine", "mining area"

and "prospecting area"’ in the NEMA are still defined as per the definitions contained in

the MPRDA.428 Section 24 of the NEMA titled "environmental authorisations" sets out the

principles429 for integrated environmental management.430 Activities that impact on the

environment or defined as "listed or specified activities"431 must be considered, examined,

evaluated and reported to the competent authority to obtain an environmental

authorisation to undertake such activities.432 Geographical areas identified on the grounds

of their environmental attributes can be defined, in which certain activities may not

commence without an environmental authorisation from the competent authority.433 The

2014 EIA regulations effective from 7 December 2014 comprise of three listing notices.434

GN R982435 regulates the procedures and criteria for the submission, processing,

consideration and decision of environmental authorisation for listed activities.436 The

listed activities in relation to wetlands as contained in the listing notices are:437

Activity 12; 19, 48 and 49 of listing notice 1,438

424 Section 2(4)(r) on NEMA. 425 Section 37(a) of the MPRDA. 426 Section 37(b) of the MPRDA. 427 See section 3.5. 428 Section 1 of NEMA. 429 Also see section 3.4.1 and 3.4.2.1 for a discussion of the NEMA principles. 430 Section 24(1) of NEMA. 431 Activities in terms of section 24(2)(a) and (d) of the NEMA. 432 Section 24 of the NEMA. 433 Section 24(2)(b) of the NEMA. 434 GN R983: Listing notice 1 for activities that require a basic assessment. GN R984 in GG 38282 dated

4 December 2014 (hereafter GN R984): Listing notice 2 for activities that require a full environmental impact assessment. GN R985 in GG 38282 dated 4 December 2014 (hereafter GN R985): Listing notice 3.

435 GN R982 in GG 38282 dated 4 December 2014 (hereafter GN R982). 436 Cross 2016 Mervyn Taback Incorporated (confidential source, on file with author). 437 GN R983, GN R984 and GN R985 as per section 24D of the NEMA. 438 GN R983. Activities within Listing Notice 1 are subject to a Basic Assessment process as detailed in

regulation 19 and 20 of GN R982. Activity 12 relates to the development of structures exceeding 100m2

64

Activity 24 of listing notice 2,439

Activity 2, 4, 10, 12, 14, 16, 18, 22 and 23 of listing notice 3. 440

The listed activities in relation to mining activities in general as contained in the listing

notices are:

Activity 21 of listing notice 1,441

Activity 17 and 19 of listing notice 2.442

A mine may not commence with a listed activity without the approval of an environmental

authorisation for the specific activity by the competent authority.443

In terms of section 31L of the NEMA, a mineral resource inspector (hereafter MRI)

appointed in terms of section 31BB of the NEMA may issue a compliance notice if there

is reasonable ground to believe that a person has not complied with the provisions of the

law for which the MRI has been designated in terms of section 31D of the NEMA, or the

provisions of any authorisation issued. A compliance notice can also be issued in terms

of section 28(4) of the NEMA for failure to comply with the statutory duty of care444

provided for in section 28(1) of the NEMA. If a mine has commenced with such a listed

activity without an environmental authorisation, the Minister445 may direct the mine to (i)

cease the activity pending a decision on a section 24G application,446 (ii) examine,

calculate and evaluate the impacts the activity has caused; (iii) remedy the negative

impacts the activity has caused the environment (iv) terminate, change or control any

within or within 32m of a watercourse; activity 19 relates to the infilling or excavation of more than 5m2 from a watercourse while activities 48 and 49 refer to the expansion of structures within or within 32m of a watercourse.

439 GN R984. Activities within listing notice 2 require a full Environmental Impact Assessment as detailed in regulations 21 to 24 of GN R982. Activity 24 refers to the removal of peat soils.

440 Only the activities relevant to the Mpumalanga Province and relevant to mining are listed. 441 GN R983, activity 21 relates to activities requiring a mining permit. 442 GN R984, activity 17 relates to activities requiring a mining right and activity 19 to the activities

associated with the removal and disposal of a mineral. 443 Section 24F(1) of NEMA. Note the Department of Mineral Resources is the competent authority for

the mining industry. 444 The duty of care provision in section 28(1) of the NEMA states: "every person who causes, has caused

or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring or, in so far as such harm to the environment is authorized by law or cannot reasonably be avoid or stopped, to minimize and rectify such pollution or degradation of the environment."

445 Of Mineral Resources. 446 Rectification application as per section 24G of the NEMA.

65

activity or omission resulting in pollution and degradation of the environment; (v) contain

or avoid the movement of pollution; (vi) eradicate the pollution. Further, the

commencement can be seen as a "criminal offence under NEMA and is punishable upon

conviction by an R10m fine or 10 years imprisonment or both."447 The mine will have to

apply for a section 24G rectification in terms of the NEMA to obtain an ex post facto

environmental authorisation, which will require the payment of an administrative fine of

up to R5 million.448 In an instance where a water use licence application is in progress

and the section 24G process is underway in terms of the NEMA it is recommended that

in the interest of cooperative governance the water use licence application should not be

finalised until the section 24G application has been approved or declined.449


Section 21(c) and (i) water uses450 are contradictory to some other water uses, non-

consumptive and the impacts of the water uses on the water resource are not as easily

identified and managed.451 Specific guideline values that quantify the impacts and the

associated risk are not easy to compile for section 21(c) and (i) water uses, as the impacts

are non-definite, extensive and site specific.452 The DWS assesses these water use licence

applications based on the risk the use will pose to resource quality characteristics such

as the flow regime, water quality, habitat and biota.453 The DWS reviewed the General

Authorisation related to section 21(c) and (i) water uses (GN R1199)454 to incorporate a

risk assessment guideline document and an associated risk matrix tool.455 The amended

General Authorisation for section 21(c) and (i) water uses was published on the 26 August

2016 as GN R509.456 Risk-based management, which is a widely used adaptive

447 Section 49B of NEMA and Kilner and Hugo 2015 Without prejudice 24. 448 Section 24G of NEMA and Kilner and Hugo 2015 Without prejudice 24. 449 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting

watercourses 19. 450 Refer to section 3.4.2.2. 451 Roets 2016 Request for Approval of the Risk Assessment Guideline Document and Associated Risk

Matrix Tool. 452 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting

watercourses 13. 453 Roets 2016 Request for Approval of the Risk Assessment Guideline Document and Associated Risk

Matrix Tool. 454 Refer to section 3.4.2.2. 455 Appendix A of GN R509 and Roets 2016 Request for Approval of the Risk Assessment Guideline

Document and Associated Risk Matrix Tool. 456 Refer to sections 2.4.1 and 2.4.3.

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management approach, now forms part of the Guideline appended to the section 21(c)

and (i) General Authorisation.457 The risk-based approach ensures each water use is

assessed on a site-specific basis to determine the specific impacts and the appropriate

mitigation measures for these impacts.458 The main purpose of the risk-based tool is to

ensure that a standardised scientific method is applied to determine the risk of section

21(c) and (i) water uses to the water resources characteristics to inform the water use

authorisation process.459 Currently, the obligation to undertake such assessments rests

on the applicant, while the DWS evaluates and decides on the appropriate control through

its authorisation process.460 In GN R509 the exclusion of a water use within the 500 meter

buffer of a wetland is replaced by the exclusion of a water use within the "extent of a

watercourse,"461 "where the Risk Class is Medium or High as determined by the Risk

Matrix."462 The 500 meter buffer from a delineated wetland has been added into the

definition of the "extent of a watercourse" in GN R509.463 The 500 meter buffer was not

included in this definition as per the draft amendments.464 Further, the amendments

specifically stipulate that where a water use falls within the exclusion, a water use licence

will be required.465 This General Authorisation will apply to mines using water or intending

to use water within the extent of a watercourse and indicates that if the use of water

under section 21(c) and (i) is determined to have a low risk as per the risk matrix

attached, proof should be submitted to the relevant catchment management agency

supported by technical documentation.466 A risk outcome of "low" will result in a General

Authorisation, whereas a risk outcome of "medium to high" will require a water use

licence under section 21(c) and (i) of the NWA.467

457 Roets 2016 Request for Approval of the Risk Assessment Guideline Document and Associated Risk Matrix Tool.


459 Roets 2016 Request for Approval of the Risk Assessment Guideline Document and Associated Risk Matrix Tool.


461 Refer to section 2.4.1 of chapter 2. 462 Regulation 3(1)(b)-(e) of GN R1180. 463 Refer to section 2.4.1 of chapter 2. 464 GN R1180. 465 Regulation 3 of GN R1180. This is not included in the final amendment. 466 Regulation 7(a) and (c) of GN R1180. 467 Risk Matrix in GN R1180. GN R509 excludes from the General Authorisation "the use of water in terms

of section 21(c) and (i) of the Act within the regulated area of a watercourse where the Risk Class is Medium or High as determined by the risk matrix."

67

Section 151(1)(a) of the NWA further states that no person may use water otherwise

than as permitted under the Act and a person may not fail to comply with the conditions

attached to a permitted water use under the Act. If a person does contravene the

provisions of subsection 1 such a person is guilty of an offence and liable, on the first

conviction, to a fine or imprisonment for a period not exceeding 5 years, or to both a fine

and imprisonment and in the case of a second conviction, to a fine or imprisonment for

a period not exceeding ten years or both a fine and imprisonment.468 Where a person has

commenced with a water use without obtaining a water use licence and has impacted

adversely on a wetland, section 155 of the NWA affords the High Court the opportunity

to grant an interdict for the rehabilitation of the adverse effects on the wetland.469

3.6 Conclusion

From the discussion in this chapter and the application of the legislation in the scenarios

given in the next chapter it will become evident that the regulation of the impact of mining

on wetlands is a complex combination falling within the water use licensing requirements

of section 21, ELWUs, as well as General Authorisation, depending on the time of

commencement of the activity and the location in relation to the buffer of the wetlands.

Pre-1998 the focus of the Water Act 54 of 1956 was to provide water for the agricultural,

mining and industrial sectors while prohibiting pollution.470 Prior to 1980 a number of

laws471 protected specific aspects of wetlands, but there was no primary protection of

these ecosystems.472 From 1998 onwards the Constitution containing the environmental

right provided a proper foundation for the promulgation of media-specific environmental

legislation such as the NEMA and the NWA.473 The NEMA provided a framework for the

protection of wetlands within the country through the inclusion of listed activities within

468 Section 151(2) of the NWA. 469 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 9. 470 Breedt and Dippenaar 2013


471 These laws included the Mountain Catchment Areas Act 63 of 1970; the Lake Areas Development Act 39 of 1975; the Environment Conservation Act 100 of 1982; the Conservation of Agricultural Resources Act 43 of 1983; the Forest Act 122 of 1984; and the Environment Conservation Act 73 of 1989.

472 Breedt and Dippenaar 2013 http://gwd.org.za/sites/gwd.org.za/files/02%20N%20Breedt_A%20summary%20of%20Wetland%20Legislation.pdf.

473 Section 24 of the Constitution and Breedt and Dippenaar 2013 http://gwd.org.za/sites/gwd.org.za/files/02%20N%20Breedt_A%20summary%20of%20Wetland%20Legislation.pdf.

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or in close proximity to wetlands. The NWA specifically defined wetlands and provided a

regulatory framework for the protection of these systems by including the term wetlands

within the definition of "watercourses"474 and requiring water use licensing for the

impeding, diverting and altering of these systems.475 Table 4 summarises the legislation

for the protection of wetlands as relevant to the three periods discussed in this chapter.

TABLE 4: Summary of the legislation for the protection of wetlands

TIME PERIOD


Pre-1998

Ramsar Convention on Wetlands of International Importance (1971)

Water Act 54 of 1956


Minerals Act 50 of 1991 or the Mines and Works Act 27 of 1956.

Environmental Conservation Act 73 of 1989 (5 September 1997 to 2 July 2006)

Post-1998

until 2014

National Water Act 36 of 1998

GN R704 in GG 20199 of 4 June 1999.

GN R1199 in GG 32805 of 18 December 2009.

Environmental Conservation Act 73 of 1989 (5 September 1997 to 2 July 2006)

In the Maccsands case the court held that an environmental authorisation for mining and related activities as listed under the NEMA

is required in addition to an EMPr under the MPRDA.476


GN R385, 386 and 387 in GG 28753 of 2 June 2006.

(3 July 2006 to 1 August 2010)

GN R543, 544, 545 and 546 in GG 33306 of 1 August 2010.

(2 August 2010 to 7 December 2014)

National Environmental Management: Biodiversity Act 10 of 2004

474 Section 1 of the NWA and Breedt and Dippenaar 2013 http://gwd.org.za/sites/gwd.org.za/files/02%20N%20Breedt_A%20summary%20of%20Wetland%20Legislation.pdf.

475 Section 21(c) and (i) of the NWA. 476 Gore and Lala 2010

http://www.bowman.co.za/eZines/Custom/Environment/OctoberNewsletters/EnvironmentalAuthorisations.html.

69

TIME

PERIOD LEGISLATION, POLICY OR GUIDELINE

National Environmental Protected Areas Act 57 of 2003

National Environmental Management: Integrated Coastal Management Act 24 of 2008


Post-2014


GN R982, 983, 984 and 985 in GG 38282 of 4 December 2014

National Environmental Management Act 107 of 1998: Regulation 2 of Listing Notice 1 GN R983 in GG 38282 of 4 December 2014

GN R509 General Authorisation for Section 21(c) and (i) water uses.

DWS 2014 Guideline to regulate activities/developments affecting wetlands

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CHAPTER 4 APPLICATION OF LEGISLATION FOR THE PROTECTION OF

WETLANDS IN MPUMALANGA

4.1 Introduction

"Environmental law is not static and is constantly updated."477 It is therefore a challenge

for the mining industry to keep up with the new legislation and also to determine the

impact thereof on its activities.478 This chapter will discuss the application of the legal

framework as detailed in chapter 3 to hypothetical scenarios within the coal mining

industry in Mpumalanga. The aim of this application is to determine the challenges faced

by the implementation of the legal framework and the consequence of these on the

protection of wetlands in the province.

Mining methods can vary significantly depending on the location type and size of the

mineral resource.479 Generally a distinction is made between two types of mining, namely

opencast and underground mining.480 The hypothetical scenarios will include both

greenfield and brownfield481 project application for underground and opencast mining.482

A further scenario will include the construction of mining-related infrastructure in close

proximity to wetlands. This scenario will not distinguish between underground and

opencast mining as the legal application to both is similar. The diagram below sets out

the scenarios that will be discussed.

477 Mabiletsa and Du Plessis 2001 SAJELP 187. 478 Dixon 1999 The Journal of the South African Institute of Mining and Metallurgy 149 and McCourt 1999

Mine, Water and Environment 744. 479 Ochieng et al 2010 Scientific Research and Essays 3352. Also see Chapter 2. 480 Ochieng et al 2010 Scientific Research and Essays 3352. 481 As explained before, in chapter 1, Greenfield application is "denoting or relating to previously

undeveloped sites" while brownfield application is denoting or relating to sites for potential mining development that have had previous mining development on them. Refer to Oxford University Press 2016 http://www.oxforddictionaries.com/definition/english/greenfield and Oxford University Press 2016 http://www.oxforddictionaries.com/definition/english/brownfield.

482 Refer to Chapter 2.

http://www.oxforddictionaries.com/definition/english/greenfield

http://www.oxforddictionaries.com/definition/english/brownfield

71

Figure 7: Scenarios

Pre-1998 Between 1998 and 2014 Post-2014

Scenario 1: An operating underground coal mine

has undertaken coal mining underneath wetlands

that commenced prior to 1998.

Scenario 2: An operating opencast coal mine has

undertaken coal mining through and in close

proximity to wetlands prior to 1998.

Scenario 3: An operating underground coal mine has undertaken coal mining underneath wetlands since prior to 1998, continued with mining underneath

wetlands (post 1998), and proposes to undertake further coal mining of wetlands in the future.

Scenario 3a: The underground mine continued with mining underneath wetlands as commenced prior to 1998 as an ELWU.

Scenario 3b: The underground mine commenced with mining underneath wetlands post 1998 and

has continued to date.

Scenario 3c: The underground mine commenced with mining underneath wetlands and has continued

to date. The location of the undermined wetlands became known to the mine only subsequent to the

undertaking of a wetland delineation assessment as per the 2005 wetland delineation guideline.

Scenario 4: Opencast mining through a wetlands commenced prior to 1998 and mining of the opencast pit is still continuing. Mining extended (prior to

1998) through a floodplain wetland associated with a tributary of a major river. The mine is in possession of a section 20 permit in terms of the Water Act 54

of 1956 of the alteration of the tributary by mining activities. The full extent of the opencast pit is authorised by an approved EMPr under the MPRDA.

72

Pre-1998 Between 1998 and 2014 Post-2014

Scenario 5: The opencast mining mentioned in scenario 4 advanced (pre-1998) through a pan. The mine did not obtain any authorisation under the Water

Act 54 of 1956 for this activity. It is unclear whether this pan was regarded as private or public water at the time mining commenced. The extent as authorised

in the mine’s EMPr includes mining through the pan.

Scenario 1: A new underground coal mine proposes

to undertake underground mining underneath

wetlands. Refer to figure 9 as an example of future

underground mining in relation to wetlands. Figure 9

indicates all the HGM wetlands classes.

Scenario 2: A proposed opencast coal mine will

undertake coal mining through and in close proximity

to wetlands as illustrated in Figure 10.

Scenario 3: An operating mine would like to carry out

future exploration or prospecting activities for the pit

extension within and/or in close proximity to the

delineated wetland. The mine has an approved

prospecting EMPr under the MPRDA for its entire

mining and surface right.

Scenario 4: The operating mine mentioned in

scenario 3 needs to conduct geohydrological drilling

to inform the specialist studies required in support of

the environmental authorisation process.

Scenario 5: The construction of mine-related

infrastructure for a proposed underground or

opencast coal mine.

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The discussion will follow the same structure as that set on in chapter 2 and 3 by applying

the legal framework to the three distinct timeframes a) pre-1998 b) between 1998 and

2014 and c) post-2014. The chapter will focus only on the legal application related to the

impacts of the given scenarios on wetlands. Where the scenarios given might require

authorisation or licensing not associated with their impact on wetlands, such discussion

falls outside the scope of this application.483

4.2 Mining underneath wetlands

Figure 7 illustrates the underground mining scenarios discussed. This section will give the

reasons why underground mining is regarded as a section 21(c) and (i) water use. Mining

underneath a wetland is regarded as a section 21(i) water use by the DWS, as it may

result in subsidence of the wetland, which would have an impact to its characteristics.484

The mining could also result in impeding and diverting the water in the wetland485 through

precipitating water ingress from the undermined wetland into the underground workings

(refer to figure 8).486 Subsequent to the removal of the orebody, the weight of the

overlying strata could weaken the support provided during the mining operations,

resulting in strata movement and the formation of cracks in the overlying strata. Wetlands

overlaying the mined area could start to drain into the underground workings. 487

483 The application will be based mainly on primary sources, specifically the MPRDA, the NWA, and the NEMA and its regulations, but will be supported by references to secondary sources. Enforcement action under the primary sources will be discussed for each scenario and will be supported by relevant case law. In all instances where reference is made to enforcement action refer to section 3.5.2.2 of the preceding chapter. The newly amended General Authorisation for section 21(c) and (i) water uses (GN R509) was published on the 26th of August 2016. Refer to footnote 9.


485 Section 21(c) of the NWA. 486 Department of Water Affairs and Forestry 2008 Best Practice Guideline – A6: Water Management for

Underground Mines 17. 487 Department of Water Affairs and Forestry 2008 Best Practice Guideline – A6: Water Management for

Underground Mines 17.

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Figure 8: Water ingress paths for (a) shallow reef (coal) mining488

The listed activities under the NEMA relate to developmental489 activities in or in close

proximity490 to wetlands. Thus the activity of mining underneath wetlands will not trigger

any NEMA-listed activities. The body of law regulating the impact of underground mining

on wetlands would therefore be the NWA, its regulations and guidelines.

4.3 Opencast mining through and in close proximity to wetlands

This section gives the background on the application of opencast mining to the licensing

requirements of the NWA and the NEMA. Opencast mining is regarded as a section 21(c)

and (i) water use by the DWS, as the opencast mining may result in the impeding,

diverting and altering of wetlands. Opencast mining through wetlands will result in the

permanent destruction of the wetlands and the total loss of biodiversity and habitat.491

Opencast mining operations in close proximity to wetlands can result in the following

impacts: erosion of the catchment area adjacent to the wetland; deterioration of the

wetland water quality; and a decrease in the wetland area downstream of the opencast

pit due to decreased runoff.492 Although the NEMA listed activities are primarily focused

488 Department of Water Affairs and Forestry 2008 Best Practice Guideline – A6: Water Management for Underground Mines 17.

489 Or construction. GN R983 to GN R985. 490 32 meters from a watercourse. GN R983 to GN R985. 491 Wetland Consulting Services 2009 Wetland delineation and impact assessment report for the

proposed AEMFC coal mine near Ogies, Mpumalanga Province 23. 492 Wetland Consulting Services 2009 Wetland delineation and impact assessment report for the

proposed AEMFC coal mine near Ogies, Mpumalanga Province 27.

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on developmental activities, some are applicable to opencast mining and will be

discussed.

4.4 Location of mining-related infrastructure within and in close proximity

to wetlands

The section gives a brief overview of why this was included in the scenario analysis to

follow. It is important to ensure that all mine infrastructure, particularly waste

management infrastructure, is located in such a manner as to minimise the potential

impact on water resources such as wetlands.493 Mining related infrastructure can impact

on wetlands by impeding the flow of water to the wetland or altering the beds, banks

course or characteristics of a wetland.494 The buffer zones as indicated in the NWA and

its regulations will be discussed. The NEMA-listed activities, being primarily focused on

developmental or construction activities, have reference to the mining and related

infrastructure located in close proximity to wetlands.

The legislation as applicable to the three timeframes and as pertaining to the specific

scenarios will now be discussed.

4.5 Pre-1998

4.5.1. Brownfields application

4.5.1.1 Scenario 1: Underground coal mine

An operating underground coal mine has undertaken coal mining that commenced prior

to 1998 underneath wetlands

The Water Act 54 of 1956 was relevant to the mining operations undertaken at the

underground mine prior to the commencement of the NWA in 1998. The Water Act 54 of

1956 made a distinction between public and private water.495 The concept of public and

private water was key in determining the legal obligation for mining underneath wetlands

493 Department of Water Affairs 2008 Best Practice Guideline A5: Water Management of Surface Mines 33. Also refer to regulation 4 of GN R704.

494 Section 21(c) and (i) of the NWA. 495 Refer to section 3.4.2.2 of this dissertation.

76

prior to 1998.496 If the undermined wetland was regarded as private water497 the mine

(as the owner of the land on which the water was found) was entitled to the sole and

exclusive use of the wetland.498

In the case where the wetlands were regarded as public water the following needed to

be taken into account. A determination was required of whether the wetlands were

associated with a stream or not, and if the underground mining altered the wetlands. 499

If alteration of the wetlands occurred, the mine was entitled to use the water only under

the authority of a permit from the Minister.500 The legal obligation to obtain a permit

under section 20 of the Water Act 54 of 1956 was therefore relevant to the location of

the wetlands in relation to public streams. A public stream was defined in section 1 of the

Water Act 54 of 1956 as:

A natural stream of water which flows in a known and defined channel, whether or not such channel is dry during any period of the year and whether or not its conformation has been changed by artificial means, if the water therein is capable

of common use for irrigation on two or more pieces of land riparian thereto which are the subject of separate original grants or on one such piece of land and also on Crown land which is riparian to such stream: Provided that a stream which fulfils the foregoing conditions in part only of its course shall be deemed to be a public stream as regards that part only (own emphasis).

It is the opinion of the author that floodplain501 wetlands (and/or wetlands directly

associated with streams) would have been regarded as public streams.502 If the wetland

496 Refer to section 3.3.3.2 of this dissertation for the definition of private and public water. 497 Pienaar and Van der Schyff 2007 Law, Environment and Development Journal 182 state that in

Roman-Dutch law spring water and non-navigable streams were regarded as water at the disposal of the landowner i.e. public water. In 1873 according to principles rooted in English law land owners were entitled to spring water on their land.

498 Subject to entitlements lawfully acquired and existing at the time of the commencement of the Water Act 54 of 1956 see section 5(1) of the Water Act 54 of 1956. This use is limited by certain sections of the subject to entitlements lawfully acquired and existing at the time of the commencement of the Water Act 54 of 1956 (refer to section 3.3.2) and thus the mine will have to determine how the water within the wetlands undermined was affected. It is assumed in this scenario that the undermining of the wetlands would not have constituted the use of industrial water (section 12 of the Water Act 54 of 1956) and would not have resulted in the disposal of such water outside the boundaries of the land (section 5(3) of the Water Act 54 of 1956).

499 Section 20 of the Water Act 54 of 1956 deals with the alteration of public streams. 500 Section 20 of the Water Act 54 of 1956. 501 "Floodplain wetland: the mostly flat or gently sloping wetland area adjacent to and formed by a Lowland

or Upland Floodplain river, and subject to periodic inundation by overtopping of the channel bank. For purposes of the classification system, the location adjacent to a river in the Lowland or Upland Floodplain Zone is the key criterion for distinguishing a floodplain wetland from a channelled valley-bottom wetland." SANBI 2009 Further development of a proposed national wetland classification system for South Africa 33.

502 Refer to section 2.4.2 of this dissertation.

77

under which mining commenced prior to 1998 was regarded as a public stream, a permit

was required under section 20 of the Water Act 54 of 1956. If the mine in scenario 1 was

not in possession of such a permit this would have constituted an offence in terms of the

Water Act 54 of 1956 and the then Department of Water, Forestry and Fisheries503 could

have taken enforcement action. If the wetland under which mining commenced prior to

1998 was regarded as private water, no permit was required under the Water Act 54 of

1956.

4.5.1.2 Scenario 2: Opencast coal mine

An operating opencast coal mine had undertaken coal mining through and in close

proximity to wetlands prior to 1998

Prior to 1998 the mine would have operated under an approved EMPr as issued in terms

of the Minerals Act.504 The opencast mining through wetlands should have been included

in the EMPr and the surface rehabilitation plan.

The discussion pertaining to water legislation in 4.5.1.1 also applies to this scenario.

Opencast mining undertaken prior to 1998 was regulated by the Water Act 54 of 1956

with the distinction between public and private water. As in the discussion in 4.5.1.1., if

an opencast mine prior to 1998 extended through a wetland and the wetland was

regarded as private water, no water use authorisation would have been required.

However, if the wetland was regarded as a public stream, typically of wetlands associated

with rivers such as floodplain wetlands, the mining required a permit under section 20 of

the Water Act 54 of 1956.505 Failure to obtain the permit would constitute an offence and

could be subject to enforcement action.506

The DWS operational policy507 stipulates how to deal with historic mining activities. This

is applicable to determine the lawfulness of the historic mining activities referenced in

503 Now the DWS. 504 Refer to section 3.3.2 of this dissertation. Prior to the Minerals Act the Mines and Works Act 27 of 1956

was safety-orientated, with limited environmental provisions. 505 Section 20 of the Water Act 54 of 1956 states that "except under the authority of a permit issued by

the Minister and in accordance with any condition subject to which such permit was issued, no person shall alter the course of a public stream."

506 Refer to footnote 479. 507 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting

watercourses 17.

78

scenario 2 at present. Historic mining activities within the regulated areas or buffers of

wetlands can in certain instances be regarded as section 21(c) and (i) water uses. Water

users can approach the DWS voluntarily in order to obtain authorisation for these historic

water uses, or the DWS could identify such water uses and require to regulate them.508

Regulation and authorisation for these historic section 21(c) and (i) water uses could

occur as follows:509

(a) If the historic use is not an existing lawful water use as contemplated in section

32(1)(a) of the NWA, a water user should have applied to the DWS to have the

water use declared as such in terms of section 33 of the NWA.510

(b) If the water use cannot be verified to be an existing lawful water use, and the water

use does not qualify as a General Authorisation, the water user will have to make a

water use licence application. The water use application will follow the same process

as a new water use licence application.511 However, in addition an environmental

audit will be required to gather information, together with the drafting of a

remediation and maintenance plan associated with the risk classification. If the

water use licence application is not approved, compliance monitoring and

enforcement measures will be implemented.512

4.6 Between 1998 and 2014

Scenario 3: Underground coal mine

An operating underground coal mine had undertaken coal mining underneath wetlands

prior to 1998,513 continued with mining underneath wetlands (post 1998) and proposes

to undertake further coal mining of wetlands in the future



510 Section 33(1) of the NWA stipulates that a person may apply to the DWS to have a water use which has not taken place at any time during a period of two years before the date of commencement of the NWA or is not a stream flow reduction of controlled activity declared to be an existing lawful water use.

511 Refer to section 3.4.2.2 of this dissertation. 512 Refer to section 3.4.2.2 of this dissertation. 513 Refer to section 4.5.1.1 of this dissertation.

79

Scenario 3a: The underground mine continued with mining underneath514 wetlands, as

had commenced prior to 1998,515 to the present day with an ELWU516

In scenario 3a in order to rely on the transitional provisions contained in section 34 of

the NWA and in order for the mine to lawfully continue with the mining underneath the

wetlands when the NWA commenced517 such mining had to take place at any time two

years prior to the commencement of the NWA518 and had to be authorised under the

Water Act 54 of 1956 if such authorisation was required.519 The mine could rely on the

transitional provisions in the NWA if the continuation of the mining underneath the

wetland was the mining of an extension of the same coal seam located under the wetland

that was lawfully mined prior to 1996. Lawful mining prior to 1996 would have taken

place if the mining occurred underneath private water or was authorised under a permit

in terms of the Water Act 54 of 1956 in the case of a public stream.520 If the mining of a

public stream commenced and continued post 1998 without a permit,521 such mining

would not be lawful and the use would not constitute an ELWU. Such mining would

constitute an offence in terms of the NWA.522

Scenario 3b: The underground mine commenced with mining underneath wetlands post

1998 and has continued to date

In scenario 3b, the mine would need to determine if the mining underneath the wetlands

constituted a section 21(c) or (i) water use under the NWA.523 The mine needs to

determine if the undermining resulted or might result in future (such as in a case of

subsidence) in the impeding, diverting and alteration of the wetlands. If such an inflow

514 Continuation of mining refers to the uninterrupted continuation of mining of the same coal seam as was mined prior to 1998, situated underneath the same wetland as was undermined prior to 1998.

515 As under the Water Act 54 of 1956 discussed in section 4.5.1.1 of this dissertation. 516 Section 34 of the NWA states that "A person, or that person’s successor in title, may continue with an

existing lawful water use, subject to - (a) any existing conditions or obligations attaching to that use; (b) its replacement by a licence in terms of this Act; or (c) any other limitation or prohibition by or under this Act." Also refer to section 32 of the NWA and section 3.4.2.2.

517 As from 1 October 1998. 518 Section 32(1)(a) of the NWA. 519 Section 32(1)(a)(i) of the NWA required that in addition to the use commencing two years prior to the

commencement of the NWA such use had to be authorised "by or under any law which was in force immediately before the commencement of this Act." Refer to section 4.5.1.2 of this dissertation.

520 Refer to section 4.3.1 of this dissertation. 521 In terms of section 20 of the Water Act 54 of 1956. 522 Section 151 of the NWA. 523 The NWA commenced in 1998.

80

occurred the mine would have to apply for a section 21(c) and (i) water use. In the event

that the mine did not apply for a water use license in such an instance the mining would

constitute an offence in terms of the NWA.524 In the case of subsidence, if a subsidence

has not yet occurred but might occur in future, the question arises as to whether the

mine should apply for a water use license for something that might happen, the reason

being that once subsidence occurs the mine would not be in possession of a water use

licence for the diversion of the water in the wetland. In such instances the mine might

be in contravention of the licensing requirements contained in the NWA.525 Further,

section 20 of the NWA deals with emergency incidents. Emergency incidents would not

include the formation of sinkholes, as section 20(1)(b) states that "in this section incident

includes any incident or accident in which a substance has or is likely to have a

detrimental effect on a water resource" (emphasis added). A sinkhole not associated with

a substance will therefore not be regarded as an emergency incident.

The requirements for General Authorisation for section 21(c) and (i) water uses and that

fall under GN R704 as will be discussed in section 4.7.1.1 will also apply.

Scenario 3c: The underground mine commenced with mining underneath wetlands and

has continued to date, the location of the undermined wetlands became known to the

mine only subsequent to the undertaking of a wetland delineation assessment as per the

2005 Wetland Delineation Guideline526

In scenario 3c the mine submitted a land capability assessment in support of its approved

EMPr under the MPRDA527 and water use licence application under the NWA indicating

wetland areas. The EMPr was compiled using the Guideline Document called the "Aide-

Memoire" and contained a detailed description of the pre-mining environment, impacts

from the proposed mining operations, and mitigation measures for surface water, land

524 Refer to section 3.4.2.2. 525 Section 22 of the NWA. 526 Department of Mineral and Energy Affairs 1992 Aide-Memoire for the preparation of environmental

management programme reports for prospecting and mining. Department of Water and Sanitation 2005 A practical field procedure for identification and delineation of wetlands and riparian areas . It should be noted that although this scenario is discussed in terms of underground mining, the legal concepts will also apply to opencast mining.

527 Mining commenced prior to 2014; thus; the MPRDA was applicable.

81

capability and use, and sensitive landscapes.528 The wetland delineation assessment

conducted post 2005 indicated areas that were not regarded as wetlands by the original

land capability assessment.529 The legal requirements discussed in the preceding section

would apply to all mining underneath wetlands that took place from the date of the

wetland assessment’s being concluded. Therefore if the undermining impeded, diverted

or altered the wetland, a water use licence would be required. If the mine was not in

possession of such a water use licence this would constitute an offence under the NWA.530

Accordingly, from the date the wetland assessment was concluded until such time as the

DWS approves a water use licence the mine would be in contravention of the NWA and

its regulations. This poses a challenge to the mining industry in that the NWA does not

make provision for transitional arrangements from the date when new specialist

information such as wetland delineation becomes known until the time an application

could be lodged for a section 21(c) and (i) water use licence and the water use licence is

approved.

Scenario 4: Opencast coal mine

Opencast mining through wetlands commenced prior to 1998531 and mining of the

opencast pit is still continuing. Mining extended (prior to 1998) through a floodplain

wetland associated with a tributary of a major river the mine is in possession of a section

20 permit of the alteration of the said tributary by mining activities and the full extent of

the opencast pit is authorised by an approved EMPr under the MPRDA

The opencast mining that commenced prior to 1998 through the tributary and associated

floodplain wetland was authorised under section 20 of the Water Act 54 of 1956.532

Therefore the mining through the tributary and associated wetland was lawful. The

528 Jansen "Environmental Management Programmes as a tool for effective catchment management in Southern Africa" 2.

529 This scenario is supported by the groundtruth exercise undertaken by WRC indicating that the mapping by the ground-truth exercise "contradicts strongly with the previous best state knowledge" where the WRC study indicated that wetlands amounted to a total area of 590 391 Ha, while the previous National Wetland Map (NWM4) indicated an area of only 213 579 Ha of wetlands. Refer to Water Research Commission 2015 Supporting better decision-making around coal mining in the Mpumalanga Highveld through the development of mapping tools and refinement of spatial data on wetlands iv.

530 Section 151 of the NWA. 531 Such mining was undertaken lawfully i.e. a permit was obtained for the mining and alteration of public

streams, while the mining of private water did not require any authorisation. 532 A permit was required at the time of commencement of the mining for the alteration of a public stream.

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mining currently undertaken is a continuation of the same pit and the mine can therefore

rely on the transitional provisions contained in the NWA.533 The current mining through

the tributary and associated wetlands is a continuation of an ELWU.534 The mining

through the tributary was authorised in the mines EMPr under the Minerals Act535 and the

MPRDA.536 It is pertinent to mention that the approved EMPr would as from 7 December

2014 be regarded as an approved environmental authorisation in terms of the NEMA,

although there is uncertainty on the transitional arrangements as section 38 of the

MPRDA has not yet been repealed.537 Thus the mining through the wetlands is seen as

approved in terms of the NEMA. However, for the period prior to 7 December 2014 in

terms of environmental legislation the following needs to be considered to determine the

lawfulness of the activity:

(a) Between the period 5 September 1997 and 2 July 2006 the ECA and its regulations

applied.538 These regulations were not applicable to the mining industry.539 In the

Maccsands case the court held that an environmental authorisation for mining-

related activities as listed under the NEMA was required, in addition to an EMPr

under the MPRDA.540

(b) From 3 July 2006 to 1 August 2010 the NEMA 2006 EIA regulations applied541 to all

listed activities specified, including those in wetlands. The 2006 regulations came

into force only on 1 April 2007 for mining and related activities, and the then Minister

of Minerals and Energy remained the competent authority.542

533 Section 34 of the NWA. 534 Section 32(1) of the NWA. 535 Prior to May 2004. For the purpose of this scenario, mining commenced post 1991. 536 Post May 2004. Also refer to section 3.3.2 of this dissertation. 537 Proc. No. 17 in GN 36541 dated 6 June 2013. Refer to section 3.5.1 of this dissertation. 538 GN R1182. 539 Section 21 of the ECA, GN R1529 in GG 19493 dated 27 November 1998 issued under section 21(1)

of the ECA and GN R1182. Also see Cross 2016 Mervyn Tabacks Incorporated (confidential source, on file with author) 17.

540 Para 25 of Maccsand (Pty) ltd v City of Cape Town 2012 (4) SA 181 (CC) and Gore and Lala 2010http://www.bowman.co.za/eZines/Custom/Environment/OctoberNewsletters/EnvironmentalAuthorisations.html.

541 GN R385, 386 and 387. 542 Ridl and Couzens 2010 PER 80. Mining is not specifically listed as an activity but sometimes an EIA

was required for non-mining-related activities such as the construction of a road. Refer to Du Plessis 2008 South African Public Law 10.

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(c) From 2 August 2010 to 7 December 2014 the NEMA 2010 EIA regulations applied,543

and again they applied to mining related activities.

As the mining commenced prior to 1998, the legislation listed above did not find

retrospective application544 and no obligation arose to obtain an environmental

authorisation for the mining activities.

If the opencast mining commenced post 1 April 2007, the following NEMA-listed activities

would have applied, namely activity 4 of GN R386: "The dredging, excavation, infilling,

removal or moving of soil, sand or rock exceeding 5 cubic meters from a river, tidal

lagoon, tidal river, lake, in-stream dam, floodplain or wetland" and activity 24 of GN R984.

If the opencast mining commenced post 2 August 2010, listed activity 18 of GN R544

would have applied.545

The rights of a holder of a mining right includes "actively conducting mining in accordance

with the mining work programme."546 These mining works programmes for existing coal

mines included the mining of pans and wetlands located within the mining right. As seen

in the discussion in this chapter, mining underneath and through wetlands547 did not

require authorisation under the Water Act 54 of 1956. However, under the NWA and its

regulations these activities required authorisation. The retrospective application of the

law is not always feasible, as this would impact negatively on the net present value548 of

an existing mine.

543 GN R543, 544, 545 and 546. 544 Refer to GN R1182, which reads "I further determine that this notice will commence in respect of

different activities on the dates indicated in Schedule 2: Provided that this notice is not applicable to an activity that was commenced with before the date of commencement fixed in respect of that activity as indicated in the said Schedule."

545 "The infilling or depositing of any material of more than 5 cubic meters into, or the dredging, excavation, removal or moving of soil, sand, shells, shell grit, pebbles or rock of more than 5 cubic meters from: (i) a watercourse; (ii) the sea; (iii) the seashore; (iv) the littoral active zone, an estuary or a distance of 100 meters inland of the high-water mark of the sea or an estuary, whichever distance is the greater but excluding where such infilling, depositing, dredging, excavation, removal or moving is for maintenance purposes undertaken in accordance with a management plan agreed to by the relevant environmental authority; or occurs behind the development setback line."

546 Section 25(2)(c) of MPRDA. 547 Seen as private water. 548 "Net Present Value (NPV) is the difference between the present value of cash inflows and the present

value of cash outflows. NPV is used in capital budgeting to analyse the profitability of a projected investment or project." Refer to Investopedia 2016 http://www.investopedia.com/terms/n/npv.asp.

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Scenario 5: Opencast coal mine

The opencast mining mentioned in scenario 4 advanced (pre-1998) through a pan, the

mine did not obtain any authorisation under the Water Act 54 of 1956 for said activity, it

is unclear whether this pan was regarded as private or public water at the time mining

commenced, and the extent as authorised in the mine’s EMPr includes mining through

the said pan

In scenario 5 if the pan were regarded as private water549 the mine did not require an

authorisation under the Water Act 54 of 1956550 and mining was conducted lawfully in

terms of the requirements of the water legislation. The pan is not regarded as a public

stream551 or public water, the latter being associated with water flowing in or derived

from the bed of a public stream.552 Therefore the mine did not require a permit in terms

of section 20 of the Water Act 54 of 1956 for the mining activities553 and the activity can

be regarded as lawful. In scenario 5 the same application in terms of the mineral and

environmental legislative requirements discussed for scenario 4 would apply.

4.7 Post-2014

4.7.1. Greenfield application

4.7.1.1 Scenario 1: Underground coal mine

A new underground coal mine proposes to undertake underground mining underneath

wetlands

Refer to Figure 9 as an example of future underground mining in relation to wetlands.

Figure 9 indicates all the HGM wetlands classes.554

549 In Breyten Collieries Ltd v Dennil (1) 1912 Uys WLC 7 T a lease was entered into giving Breyten sole right to search, mine and work for coal on the farm. On the boundary of the property there was a natural pan (with no outflow). A dispute arose between the neighbours on how much water could be used by each from the pan. The court held that the water in the pan was private water in terms of Water Conservation Act 8 of 1912.

550 Refer to footnote 271. 551 Pans have closed drainage, as referenced in section 2.3 of this dissertation. 552 Section 5 of the Water Act 54 of 1956. Also see Breedt and Dippenaar 2013


553 Note that auxiliary mining activities might have required authorisation under the Water Act 54 of 1956. 554 Refer to section 2.4.2 of this dissertation.



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Figure 9: Map indicating future underground mining in relation to

wetlands.555

For proposed mining underneath wetlands the following legislation framework is

applicable:

(a) Water use licensing requirements under the NWA

Section 4.2 of this dissertation explains why mining underneath wetlands is regarded as

section 21(c) and (i) water uses.556 If the mining underneath the wetlands will result in

impeding, diverting or the alteration of wetlands, the mine will have to apply for a water

use licence from the DWS.557 In order for the DWS to consider the authorisation of the

555 SRK Consulting 2016 Setlabotsa "EIA/EMP – public review" 64. 556 Section 21(c) and (i) of the NWA. Section 21(c) refers to "impeding and diverting the flow of water in a

watercourse" and section 21(i) to "altering the bed, banks, courses or characteristics of a watercourse." Refer to Chapter 2 of this dissertation on the inclusion of the term "wetlands" in the definition of "watercourse." Also see 3.4.2.2.

557 Section 22 of the NWA.

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water uses applied for, the impact of the mining on the wetlands needs to be

determined.558 The undertaking of such rests with the applicant (the mine) for the water

use authorisation,559 who will appoint a wetland assessment practitioner to conduct a

delineation and impact assessment. Refer to chapter 2.4.2 of this dissertation on the

WET-Health and WET-Eco-Services tools used for such an assessment.

(b) General Authorisation for section 21(c) and (i) water uses

A General Authorisation560 relieves a water user from the need to apply for a water use

licence. General Authorisations constitute flexible administrative measures that are

subject to certain limitations and permit the granting of a general permission to use water

within a particular geographical area.561 In order for the General Authorisation to find

application the mine needs to determine if any of the exclusions of the General

Authorisation for section 21(c) and (i) water uses562 find application to the mining

underneath the wetland. If the exclusions find application then the mine will not be able

to rely on the General Authorisation and will need to apply for a water use licence.563

Regulation 6(b) of GN R1199 indicates that the General Authorisation does not apply to

a water use in terms of section 21(c) and (i) within a 500 meter radius from the boundary

of a wetland. From the definitions contained in GN R1199 on altering, impeding and

diverting,564 the mere undertaking of an activity within the 500 meter buffer does not

necessarily mean that a water use licence is required. A determination needs to done as

to whether the activity will result in the altering, impeding and diverting of the wetland.565

However, in the author’s experience,566 as substantiated by the DWS Water Use

Authorisation Application Process External and Internal Guidelines,567 the DWS does not



560 Section 39 of the NWA. Refer to section 3.4.4.2 of the dissertation. 561 Part 6 of the NWA and Stein 2005 Texas Law Review 2180. 562 GN R1199. 563 Regulation 6 of GN R1199. 564 Refer to section 3.4.4.2 of the dissertation. 565 Section 21(c) and (i) of the NWA and Cross 2016 Mervyn Tabacks Incorporated (confidential source,

on file with author) 9. 566 The author has worked for 12 years within the environmental management fields for the mining

industry, of which the last 5 years were as Environmental Permitting Manager for Anglo American Coal South Africa.

567 Refer to the discussion under section 3.4.2.2.

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agree with this interpretation and is of the view that any activity within the 500 meter

boundary of a wetlands constitutes a section 21(c) and (i) water use and requires a water

use licence irrespective of whether the activity alters, impedes or diverts the wetland.

The question also arises as to whether the boundary of the wetlands applies only on the

surface (refer to Figure 5 in section 2.4.1) or is also applicable horizontally (below the

wetland). In other words, does the mine require section 21(c) and (i) water use licenses

for mining underneath the wetland only, or also for mining underneath the 500 meter

buffer of the wetland? Upon the review of the definitions of a watercourse edge and

boundary it seems that the physical area or extent is applied to the surface only.568

Groundwater is also excluded from the definition of a watercourse.569 With reference to

Figure 8 of this dissertation, impeding, diverting or the alteration of a wetland will occur

in the event of subsidence or cracks in the substrata leading to the inflow of water into

the underground mine workings. If the 500 meter buffer is indeed applicable to

underground mining, and the ingress of water from a wetland results from underground

mining outside of this 500 meter buffer, the application of this arbitrary line would not

protect the wetland from underground mining impacts. On the other hand, if mining

within the 500 meter buffer does not result in the ingress of water from the wetland into

the underground mine, such mining underneath wetlands should not require a water use

licence under section 21(c) and (i) of the NWA.

(c) Regulation GN R704

From 1998 the mine needed to comply with the GN R704 Regulation on the use of water

for mining and related activities, the regulation being aimed at the protection of water

resources. Regulation 4 of GN R704 stipulates that no person in control of a mine may

carry out any underground mining within the 1:50 year flood line or within a horizontal

distance of 100 meters from a watercourse. GN R704 is the only legislative requirement

568 The definition of "regulated area" refers to the terms "flood line" and "riparian habitat," whereas "flood line" is not defined in the NWA or its regulations. "Floodplain" is "land which adjoins the channel of a natural stream and which is subject to overflow flooding. In hydrologic terms it is the area subject to inundation by floods of a particular frequency" as in James et al User’s guide to SWMM5 839 (the flood line is the edge of the floodplain). Riparian habitat as per section 1 of the NWA refers to the "physical structure and associated vegetation of the areas associated with a watercourse."

569 Section 1 of the NWA. Refer to section 2.4 for the definition of a watercourse. Department of Water and Sanitation 2016 Section 21(c) and (i) water use training.

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that specifically refers to underground mining. The mine would thus need to apply to the

DWS for exemption from the requirements of regulation 4.570

To conclude, I submit that if the proposed activity of mining underneath the wetlands will

result in the altering, impeding or diverting of the wetlands, regardless of the distance of

the mining below the wetlands, a water use licence will have to be obtained. However,

the DWS does not hold this view, in that they apply the section 21(c) and (i) water use

licence requirements to any activity regardless of whether that activity impedes, diverts

or alters the watercourse, if the activity is located within the buffer zones specified.571 If

the DWS interpretation is applied, any mining underneath wetlands and within 500 meters

of the boundary of a wetland will require a water use licence. Also, in order for a company

to mine underneath wetlands it will have to apply for exemption from the requirements

of GN R704, where such mining occurs within the 100 meter buffer zone. A section 21(c)

and (i) water use licence and GN R704 exemption are required for each instance where

the underground mining crosses underneath a wetland.

4.7.1.2 Scenario 2: Opencast coal mine

A proposed opencast coal mine will undertake coal mining through and in close proximity

to wetlands as illustrated in Figure 10

The following listed activities in terms of the NEMA relate to the proposed opencast mining

scenario:

The infilling or depositing of any material of more than 5 cubic meter into, or the dredging, excavation, removal or moving of soil, sand, shells, shell grit, pebbles or rock of more than 5 cubic meters from (i) a watercourse…572

The extraction or removal of peat or peat soils, including the disturbance of vegetation or soils in anticipation of the extraction or removal of peat or peat soils, but excluding where such extraction or removal is for the rehabilitation of wetlands in accordance with a maintenance management plan.573

570 Regulation 3 of GN R704. 571 DWS Water Use Authorisation Application Process External and Internal Guidelines. 572 Activity 19 of GN R983. Activities within Listing Notice 1 are subject to a Basic Assessment process

as detailed in regulation 19 and 20 of GN R982. Also see section 3.5.2. 573 Activity 24 in GN R984.

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The mine will require the approval of an environmental authorisation application by the

DMR574 for the opencast mining activities that will extend through the wetlands.575

With regard to the NWA, section 21(c) and (i) water use authorisation licences will be

required for the mining of wetlands, as the mining will result in the total loss of the

wetlands.576 For opencast mining in close proximity to wetlands, the buffer zones as

indicated in the General Authorisation for section 21(c) and (i) water uses577 and the

requirements in GN R704 will apply. Opencast mining within 500 meters of the boundary

of a wetland will require water use licensing if such mining will impede, divert and alter

the watercourse.578 However, as explained in the preceding section, the DWS holds the

view that any activity within the 500 meter zone buffer requires water use licensing.579

Regulation 4 of GN R704 indicates that a mine may not carry out any opencast mining

within the 1:50 year flood line or the horizontal distance of 100 meters for any

watercourse.580 All opencast mining should be outside the exclusion zones.581 If opencast

mining will occur within the exclusion zones, exemption should be obtained from the

DWS.582 In conclusion and with reference to Figure 10, all the mining areas overlapping

delineated wetlands or within the 500 meter buffer zone will require a section 21(c) and

(i) water use licence from the DWS. In addition, all mining areas within the 100 meter

buffer zone or 1:50 year flood line will require an exemption from GN R704.

574 Section 24C(2A) of the NEMA indicates that the Minister responsible for mineral resources must be identified as the competent authority in terms of listed activities related to mining. Also see section 3.5.1.

575 For the inclusion of wetlands in the definition of watercourses, please refer to section 2.4. 576 Impeding, diverting and altering of wetlands. 577 GN R1199. 578 Regulation 6 of GN R1199. 579 DWS Water Use Authorisation Application Process External and Internal Guidelines. 580 Regulation 4(a) of GN R704. 581 1:50 year flood line or 100m from the centre of a wetland. 582 Regulation 3 of GN R704 and Department of Water Affairs 2008 Best Practice Guideline A5: Water

Management of Surface Mines 36.

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Figure 10: Map indicating a proposed opencast footprint overlain on the

delineated wetland areas583

Brownfield application

4.7.2.1 Scenario 3: Opencast/ underground coal mine prospecting

An operating mine would like to carry out future exploration584 or prospecting585 activities

for the pit extension within and/or in close proximity to the delineated wetland; the mine

583 Wetland Consulting Services 2009 Wetland delineation and impact assessment report for the proposed AEMFC coal mine near Ogies, Mpumalanga Province 23.

584 Exploration means "The search for a mineral deposit (prospecting)" as defined in SACMA 2005 Surface Strip Coal Mining Handbook 1-5.

585 Prospecting is defined in section 1 of the MPRDA to the effect that it "means intentionally searching for any mineral by means of any method - (a) which disturbs the surface or subsurface of the earth, including any portion of the earth that is under the sea or under other water."

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has an approved prospecting EMPr under the MPRDA for its entire mining and surface

right586

Exploration or prospecting requires the preparation of an environmental impact

assessment, an EMPr and rehabilitation plan, as drilling has an environmental impact.587

Section 5 of the MPRDA refers to the requirements under the NWA for the use of water

from watercourses588 for prospecting purposes. In the event that the prospecting

activities within and in close proximity to wetlands are included in the prospecting EMPr

and the associated environmental aspects, impacts and mitigation measures are

stipulated, such an EMPr would be regarded as an environmental authorisation.589 The

prospecting activities would therefore be authorised under the NEMA. If the proposed

prospecting activities are not included in the approved prospecting EMPr under the

MPRDA, such activities would require authorisation from the DMR under the 2014 EIA

regulations for listed activities, as they trigger activity 19 in GN R983 relating to the

infilling or excavation of more than 5m2 from a watercourse.590 If no listed activities are

triggered, an amendment of the EMPr would be required. Regulation 32 of GN R982

indicates:

An environmental authorisation may be amended by following the process prescribed in

this Part if the amendment will result in a change to the scope of a valid environmental

authorisation where such change will result in an increased level or nature of impact where such level or nature of impact was not - (a) assessed and included in the initial

application for environmental authorisation; or (b) taken into consideration in the initial

environmental authorisation; and the change does not, on its own, constitute a listed or specified activity.

If the prospecting activities will be carried out in wetlands or within or near the floodplains

buffer zones, the provisions of the NWA and the GN R704 regulations should be taken

586 Section 38 of the MPRDA. Section 38 was repealed by section 31 of Act 49 of 2008 with effect from 7 June 2013.

587 Activity 20 of GN R983 and SACMA 2005 Surface Strip Coal Mining Handbook 9-8. 588 Such as a "natural spring, lake, river or stream, situated on, or flowing through, such land or from any

excavation previously made and used for prospecting, mining, exploration or production purposes, or sink a well or borehole required for use relating to prospecting, mining, exploration or production on such land."

589 Section 38B(1) of the Mineral and Petroleum Resources Development Amendment Act 49 of 2008 and NEMLA Bill 2015. Refer to section 3.5.1 of this dissertation.

590 Refer to the Anker Coal case on contraventions of the NEMA related to prospecting activities in a wetland discussed in section 3.4.2.2 of this dissertation. Contraventions relate to section 28(14)(a) read with sections 1, 28(15), 32, 34, 34B, 34C and 34H of the NEMA as in para 6.1.2 of the Anker Coal case.

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into account. The prospecting activities will require a water use licence591 unless they are

otherwise authorised by the NWA, for example under a General Authorisation.592 The

discussion in section 4.7.1(b) on the requirements relating to the 500 meter buffer zone

specified in GN R1199 will also be applicable here. Regulation 4(b) of GN R704 prohibits

prospecting within the 1:50 year flood-line or within a horizontal distance of 100 meters

from a wetland. If the prospecting activities are located within these buffer zones a GN

R704 exemption will have to be obtained from the DWS.593

4.7.2.2 Scenario 4: Opencast/ underground coal mine geohydrological drilling

The operating mine mentioned in scenario 3 needs to conduct gehydrological drilling to

inform the specialist studies required in support of the environmental authorisation

process

The legislative requirements discussed in scenario 3 would also apply to geohydrological

drilling to be conducted within or in close proximity (i.e. within the legislative buffer zones

specified) of wetlands. The challenge lies in the fact that authorisation has to be obtained

in order to gather data to inform authorisations. This has a significant impact on the

timeframe for proposed mining projects. Regardless of whether the prospecting or

geohydrological drilling is temporary and the impact thereof low, the environmental legal

requirements remains applicable. In order to mitigate this challenge, the DWS has

amended specifically the General Authorisation for section 21(c) and (i) water uses.594

4.7.2.3 Scenario 5: Mine-related infrastructure

The construction of mine-related infrastructure595 for a proposed underground or

opencast coal mine

591 See section 21(c) and (i) of the NWA for impeding, diverting or altering of the wetland. 592 GN R1199 will have reference. 593 Regulation 3 of GN R704. 594 GN R509. Refer to section 3.5.2.2 of this dissertation. 595 "Mine-related infrastructure" refers among other things to conveyors, pipelines, haul roads, sewage

treatment plants, mineral residue stockpiles and deposits and coal processing plants. Section 1 of the MPRDA states that processing, "in relation to any mineral, means the winning, extracting, concentrating, refining, calcining, classifying, crushing, screening, washing, reduction, smelting or gasification thereof."

93

In terms of water legislation the same principle applies as previously discussed, in that if

the infrastructure impedes, diverts or alters the wetland a section 21(c) and (i) water use

licence under the NWA is required.596 An example is the crossing of a wetland by a coal

conveyor or water pipeline. Again, as with mining itself, the DWS holds the view that if

infrastructure is located within the 500 meter buffer zone specified in GN R1199, a water

use licence is required regardless of the nature of the impeding, diversion or alteration

of the wetland. In this regard reference is made to the DWS Operational Policy597 that

indicates that dams constructed for water management on mines, whether clean or dirty

water, can entail section 21(c) and (i) water uses if located in the regulated zone or

buffers of wetlands. However, it is unclear from the DWS policy if this approach should

be followed only in the event that the activity which the mine has commenced with

triggered a listed activity under the NEMA EIA regulations598 or in all instances of section

21(c) and (i) water uses. If the DWS requirements are met and the competent authority

for environmental authorisation, in this instance the DMR, is willing to include it in the

environmental authorisation, a section 22(3)599 process under the NWA can be followed

to dispense with the requirement for a water use license.600 If the DWS requirements

cannot be included in the environmental authorisation, a water use licence application

will have to be submitted for approval.601 In contrast, GN R704 is more specific in that it

places a restriction on the location of residue deposits, dams, reservoirs and associated

structures within the 1:100 year flood line or within a horizontal distance of 100 meters

of a watercourse, including a wetland.602 In order to position mining infrastructure legally,

the following process is to be followed:

Step 1: identify all watercourses (inclusive of wetlands),

596 See section 3.5.2.2. 597 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting

watercourses 17. 598 GN R983, GN R984, GN R985 in GG 38282 of 4 December 2014. 599 Section 22(3) of the NWA stipulates that "a responsible authority may dispense with the requirement

for a licence for a water use if it is satisfied that the purpose of this Act will be met by the grant of a licence, permit or other authorisation under any law."

600 Department of Water Affairs 2012 Operational policy to regulate development and activities affecting watercourses 18. Refer to section 3.4.2.2.


602 Regulation 4 of GN R704.

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Step 2: determine the 1:100 year flood lines for all the watercourses,

Step 3: determine the horizontal distance exclusion zones (100 meter),

Step 4: plot all the above on a map/ plan,

Step 5: obtain GN R704 exemption for all mining-related infrastructure within the

exclusion zones from the DWS.603

A further restriction is the placement of sanitary conveniences, fuel depots and reservoirs

for any substance that is likely to cause pollution of a water resource within the 1:50 year

flood line of any watercourse.604 This poses a challenge to mine planning, as all mining

infrastructure needs to be located outside of the 1:100 year flood, but sanitary

conveniences outside the 1:50 year flood line.

Further restriction on the location of developmental activities is found in the 2014 EIA

regulations under the NEMA. Development is defined as:605

building, erection, construction or establishment of a facility, structure or infrastructure, including associated earthworks or borrow pits, that is necessary

for the undertaking of a listed or specified activity, including any associated post development monitoring, but excludes any modification, alteration or expansion of such a facility, structure or infrastructure, including associated earthworks or borrow pits, and excluding the redevelopment of the same facility in the same location, with the same capacity and footprint.

Linear activities include railways, roads, pipelines, conveyor belts, powerlines, fences, and

telecommunication lines.606 For the applicable listed activities refer to section 3.5.2.1 of

this dissertation. In the event that listed activities are triggered, an application607 must

be made to the DMR.608 In the light of the above discussion it is evident that if a single

piece of infrastructure, for example a road, is located within 32 meters609 of the boundary

of a wetland, multiple applications to different regulatory authorities will be required. For

603 Department of Water Affairs 2008 Best Practice Guideline A5: Water Management of Surface Mines 36.

604 Regulation 4(b) of GN R704. 605 Regulations 2 of GN R983. 606 Regulation 2 of GN R983. 607 In terms of regulations 19 and 20 of GN R982 if a basic assessment must be applied, and in terms of

regulations 21 to 24 if a Social and Environmental Impact Assessment must be applied. 608 Regulations 6(7) of GN R982. 609 32 meters being the closest buffer to the boundary of a wetland included in the NEMA listed activities.

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the single road, an application under the NEMA is required to the DMR; an application for

GN R704 exemption is required to the DWS, as well as a section 21(c) and (i) water use

licence application to the DWS. If this is multiplied for each piece of infrastructure on the

mine, this will result in a huge number of applications for approvals to different regulatory

authorities for one mining project.

4.8 Conclusion

In this chapter the legislation described in chapter 3 has been applied to various scenarios

pertaining to the impact of mining on wetlands in Mpumalanga. Existing mines have been

deemed viable based on the mining works programme610 approved by the DMR.611

From the application of the legislative framework set out in chapter 3 to practical

scenarios it has become evident that the governance of the protection of wetlands is

complex. It has become evident that legislative requirements overlap or even contradict

one another with reference to buffer zones. The implementation of these buffer zones by

the regulator further complicates the application of these requirements. What is evident

is that the greenfield application is more streamlined than that of the brownfield

application. In the different time periods discussed, different legal requirements applied

relating to the protection of wetlands. Some mines’ lives span these "legal" timeframes.

This complicates the operation of the mines as they need to take into consideration their

historic activities, their current activities (relying on transitional requirements) and their

future activities, as well as the location of these activities in relation to wetlands. Table 5

summarises the three periods discussed in this and the preceding chapters, the legislation

for the protection of wetlands, and its application to the scenarios given in this chapter.

610 "Mining works programmes" means "the planned mining works programme to be followed in order to mine a mineral resource optimally" as per section 1 of the MPRDA.

611 Section 23 (1) of the MPRDA indicates that the Minister must grant a mining right if the mineral can be mined optimally.

96

TABLE 5: Summary of the legislation and the application thereof for the protection of wetlands within the coal mining

industry in Mpumalanga

TIME

PERIOD

LEGISLATION, POLICY

OR GUIDELINE

APPLICATION

UNDERGROUND MINING OPENCAST MINING MINING INFRASTRUCTURE

Pre-1998 Ramsar Convention on Wetlands of International Importance (1971)

Not included in the scenario analysis.


Not directly applicable to mining.

Water Act 54 of 1956 The Water Act 54 of 1956

made a distinction between public and private water.

a) If the undermined wetland

was regarded as private water the mine was entitled to the sole and exclusive use of the wetland.

b) If the undermined wetland was regarded as a public stream it was the mine's legal obligation to obtain a permit

The Water Act 54 of 1956

made a distinction between public and private water.

a) If the mined wetland was

regarded as private water the mine was entitled to the sole and exclusive use of the wetland.

b) If the mined wetland was regarded as a public stream it was the mine's legal obligation to obtain a permit under

Not applicable

97

TIME PERIOD


APPLICATION

UNDERGROUND MINING OPENCAST MINING MINING

INFRASTRUCTURE

under section 20 of the Water

Act 54 of 1956.

section 20 of the Water Act 54

of 1956.

Pre-1998

Minerals Act 50 of 1991

or the Mines and Works Act 27 of 1956.

Mining underneath wetlands

should have been included in the EMPr and the surface rehabilitation plan.

Opencast mining through

wetlands should have been included in the EMPr and the surface rehabilitation plan.

Not applicable

Environmental Conservation Act 73 of 1989 and GN R1182.

5 September 1997 to 2

July 2006.

These regulations were not enforced in the mining industry.

98

TIME PERIOD


APPLICATION


INFRASTRUCTURE

Post-1998 until

2014

National Water Act 36 of

1998

Section 21(c): Impeding

and diverting the flow of water in a watercourse.

Section 21(i): Altering the

bed, banks, course and characteristics of a watercourse.

Mining underneath a wetland

is regarded as a section 21(i) water use by the DWS, as this may result in subsidence of the wetland resulting in an impact on the characteristics

thereof.

It may also be regarded as a section 21(c) water use as it can result in the impedance

or diversion of water in the wetland through water ingress from the wetland into the underground workings.


wetlands will result in the permanent destruction of the wetlands and the total loss of biodiversity and habitat and is regarded as a section 21(c)

and (i) water use.

Mining related infrastructure

can impact on wetlands by impeding the flow of water to the wetland or altering the beds, banks course or characteristics of a wetland.

If the mining underneath the wetlands would result in impeding, diverting or altering the wetlands, the

mine had to apply for a water use licence from the DWS.

If the opencast mining would result in impeding, diverting or altering the wetlands the mine had to apply for a water use

licence from the DWS.

If the mining-related infrastructure would result in impeding, diverting or altering the wetlands, the

mine had to apply for a water use licence from the DWS.

99

TIME PERIOD


APPLICATION


INFRASTRUCTURE

Post-1998 until 2014

Underground mining can be

regarded as an ELWU under section 24 of the NWA if: a) Mining commenced 2 years prior to the commencement of the NWA and

b) Such mining was authorised under the Water Act 54 of 1956. The mine can rely on the

transitional provisions in the NWA if the continuation of the mining underneath the wetlands is an extension of the same coal seam that was lawfully mined prior to 1996.

Opencast mining can be

regarded as an ELWU under section 24 of the NWA if: a) Mining commenced 2 years prior to the commencement of the NWA and

b) Such mining was authorised under the Water Act 54 of 1956. The mine can rely on the

transitional provisions in the NWA if the continuation of the mining of the wetlands is an extension of the same opencast pit that was lawfully mined prior to 1996.

The impedance, diversion or

alteration of the wetlands by infrastructure can be regarded as an ELWU under section 24 of the NWA if: a) Construction commenced

2 years prior to the commencement of the NWA and b) Such construction was authorised under the Water Act 54 of 1956.

100

TIME PERIOD


APPLICATION


INFRASTRUCTURE

Post-

1998 until 2014

GN R704 in GG 20199 of

4 June 1999.

Regulation 4 stipulates that

no person in control of a mine may carry out any underground mining within the 1:50 year flood line or within a horizontal distance of

100 meters from a watercourse. The mine would thus need to apply for exemption from the

requirements of regulation 4 from the DWS for mining underneath wetlands.

Regulation 4 indicates that a

mine may not carry out any opencast mining within the 1:50 year flood line or the horizontal distance of 100 meters for any watercourse.

All opencast mining should be

outside the exclusion zones. If opencast mining will occur within the exclusion zones exemptions should be obtained from the DWS.

Regulation 4 places a

restriction on the location of residue deposits, dams, reservoirs and associated structures within the 1: 100 year flood line or within a

horizontal distance of 100 meters from a watercourse. A further restriction is the placement of sanitary conveniences, fuel depots

and reservoirs for any substance that is likely to cause pollution of a water resource within the 1:50 year flood line of any watercourse.

The mine would thus need to apply for exemption from the requirements of regulation 4 from the DWS if any infrastructure is

located within the exclusion zone.

101

TIME PERIOD


APPLICATION


INFRASTRUCTURE

Post-

1998 until 2014

GN R1199 in GG 32805 of

18 December 2009.

A General Authorisation relieves a water user from the need to apply for a water use licence.

Regulation 6(b) of GN R1199 indicates that a General Authorisation does not apply to a water use in terms of section 21(c) and (i) within a 500 meter radius from the boundary of a wetland. If the exclusions find application then the mine will not be able to rely on the General Authorisation and will need to apply for a water use licence.

Environmental Conservation Act 73 of 1989. 5 September 1997

to 2 July 2006.

These regulations were not enforced in the mining industry.

National Environmental Management Act 107 of

1998

The NEMA-listed activities refer to developmental

activities within 32 meters of a wetland or activities undertaken within a watercourse. These activities would not be applicable to

underground mining.

The NEMA-listed activities refer to developmental activities

within 32 meters of a wetland. These activities would not be applicable to opencast mining.

Developmental activities within 32 meters of a

wetland.

2006 EIA regulations: GN R385, 386 and 387 in GG

28753 of 2 June 2006.

3 July 2006 to 1 August 2010 (1 April 2007 for mining operations).

If opencast mining commenced post 1 April 2007, listed activity 4 of GN R386 would have applied: "The dredging,

excavation, infilling, removal or moving of soil, sand or rock exceeding 5 cubic meters from a river, tidal lagoon, tidal river, lake, in-stream dam, floodplain

or wetland."

The requirements for mining infrastructure during this period were not included in the scenario analysis.

102

TIME PERIOD


APPLICATION


INFRASTRUCTURE

Post-

1998 until 2014

2010 EIA regulations: GN R543, 544, 545 and 546

in GG 33306 of 1 August 2010 (2 August 2010 to 7 December 2014).

If opencast mining commenced

post 2 August 2010 the following NEMA-listed activity would have applied - activity 19 of GN R544: "The infilling or depositing of any material of

more than 5 cubic meters into, or the dredging, excavation, removal or moving of soil, sand, shells, shell grit, pebbles or rock of more than 5 cubic

meters from: (i) a watercourse…"

National Environmental Management: Biodiversity Act 10 of 2004


National Environmental Protected Areas Act 57 of 2003


National Environmental Management: Integrated Coastal Management Act 24 of 2008

Not applicable to mining in Mpumalanga.

103

TIME PERIOD


APPLICATION


INFRASTRUCTURE

Post-

1998 until 2014


Mining underneath wetlands

should have been included in the EMPr and the surface rehabilitation plan.


wetlands should have been included in the EMPr and the surface rehabilitation plan.

Not applicable

Post-2014


An approved EMPr, it seems, would as from 7 December 2014 be regarded as an approved environmental authorisation in terms of the NEMA.

GN R982, 983, 984 and 985 in GG 38282 of 4 December 2014

None of the listed activities would be triggered by underground mining.

The following listed activities in terms of the NEMA relate to the proposed opencast mining scenario: activity 19 of GN

R983 and activity 24 of GN R984 related to the undertaking of activities within a watercourse. The mine will require an

environmental authorisation by the DMR for the opencast mining activities that will extend through the wetlands.

Developmental activities within 32 meters of a wetland.

Post-2014

National Water Act 36 of 1998 Section 21(c): Impeding and diverting the flow of water in a watercourse

The same application as for the period 1998 to 2014.

104

TIME PERIOD


APPLICATION


INFRASTRUCTURE

Section 21(i): Altering the

bed, banks, course and characteristics of a watercourse.

GN R509 Draft General Authorisation for Section 21(c) and (i) water uses.

The draft regulations were not included in the scenario analysis as were published in August 2016 only.

DWS 2014 Guideline to regulate activities/developments affecting wetlands

The DWS is of the view that any activity within the 500 meter boundary of a wetland constitutes a section 21(c) and (i) water use and requires a water use licence, irrespective of whether the activity alters, impedes or diverts the wetland.

105

CHAPTER 5 CONCLUSION

5.1 Introduction

The aim of this dissertation was to determine if the current legal framework guarantees

the protection of wetlands located within the coal mining industry in Mpumalanga.612 As

discussed in chapter 2, coal mining has significant and unique impacts on wetlands. These

impacts can occur during any or all lifecycle phases of a mine (prospecting, operational

and decommissioning) and are likely to increase as the activities on the ground

progress.613 Coal mining impacts on the key hydrological processes614 supporting wetland

functionality. Opencast coal mining can result in the total destruction of these systems.615

In 2013, of South Africa’s "792 wetland ecosystems, 65% have been identified as

threatened and 48% as critically endangered."616 In the Mpumalanga Province, coal

seams are inherently linked to the occurrence of wetlands.617 The protection and

governance of the impacts of coal mining on wetlands has in recent years attracted

increased attention.618 In order to support the main aim of the research, this dissertation

has reviewed the legal definition of the term wetland, evaluated the South African

environmental legal framework governing wetlands, and applied the legal framework to

various scenarios within the Mpumalanga coal mining environment to determine if the

legal framework sufficiently protects wetlands within the province.619

5.2 Defining the challenges related to the term "wetland"

This dissertation620 indicated the complexity in defining the term "wetland" and the

inconsistency in the legal interpretation thereof. The interpretative challenges are

612 Refer to section 1.1. 613 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 10. Also refer to figure

4 in chapter 2. 614 Through the impact on water quantity (flow) and water quality of wetlands. 615 Refer to section 2.3. 616 Department of Water and Sanitation 2013 National Water Resource Strategy 2013 9 (hereafter

NWRS2). The NWRS2 "sets out the strategy to plan, develop, manage, protect and control the use of our water resources effectively for the future." Refer to Chapter 2 for the inclusion of wetlands in the definition of water resources.

617 Exarro date unknown http://www.exxaro.com/index.php/sustainability/wetlands-and-coal/. 618 Refer to section 2.2. 619 Due to the scope of the legal framework governing wetlands, all of the challenges experienced in the

practical application could not be covered in this dissertation. The challenges discussed are limited to those derived from the scenarios in chapter 4.

620 Refer to section 2.4.


106

exacerbated by the inclusion in the legal framework of a set of different buffer zones for

developmental impacts on wetlands.621 The South African legislation contains a wide array

of direct and indirect definitions of wetlands.622 For example, water resources are held in

public trust by the DWS. The definition of water resources includes "watercourse," which

in turn includes the term "wetland." The definition of "environment" in the NEMA also

refers to water, while the NEMA also defines "watercourse" and "wetland." The inclusion

of the term "wetland" in the definition of "watercourse" is relevant as the licensing

requirements of water uses as contained in section 21 of the NWA623 and the listed

activities requiring authorisation under the NEMA refer to the term "watercourse".

"Wetland" is defined in the RAMSAR Convention, the NWA and the NEMA.624 The definition

of "wetland" in the NEMA and the NWA is:

Land which is transitional between terrestrial and aquatic systems where the water table is usually at or near the surface, or the land is periodically covered with shallow water, and which land in normal circumstances supports or would

support vegetation typically adapted to life in saturated soil.

Wetlands are thus defined based on hydrology, vegetation and soil.625 The NWA and

NEMA definition refers to natural wetlands, while the RAMSAR definition explicitly includes

artificial wetlands.626 The DWS, however, applies the legal framework to both natural

and artificial wetlands, as both maintain hydrological flow. A wetland, despite what the

term suggests, is not land that is always wet, as some types of wetlands such as pans

can be dry for years.627 Due to the variability in the South African climate, wetlands in

some years are wetter than in others. This is particularly evident at the outer boundary

of the wetland. The presence of water alone is thus an unreliable indicator of the

boundary and conditions of the wetland.628 The definition indicates that wetlands are

621 Refer to 2.4.1 and 3.4.2.2 and 3.5.2.2. 622 Table 3 contains a summary of the definitions of wetlands as contained in the South African legal

framework. 623 Section 21(c) of the NWA refers to "impeding and diverting the flow of water in a watercourse" and

section 21(i) refers to "altering the bed, banks, course or characteristics of a watercourse." Refer to 3.4.2.2.

624 Refer to Table 3. 625 Marnewecke and Kotzé 1999 "Guidelines for delineation of wetland boundary and wetland zones"

W6/2. 626 Coaltech 2007 Upper Olifants river catchment wetland inventory, Mpumalanga and Gauteng province

12. 627 Water Research Commission 2015 Wetland rehabilitation in a mining landscape 6. 628 Marnewecke and Kotzé 1999 "Guidelines for delineation of wetland boundary and wetland zones"

W6/2.

107

transitional in nature and the boundary of a wetland is often not clearly apparent in the

field.629 However, as is evident in chapter 3, the legal framework is grounded on the

notion of the boundary and buffer of a wetland.

5.3 "Boundaries" set by the definition of wetlands

The primary goal of classifying wetlands is to impose boundaries on natural ecosystems for the purpose of inventory, evaluation and management.630 While

it is recognized that this boundary may be a human construct, it is necessary from a management and legal point of view and can be undertaken on the basis of scientifically defensible criteria.631

South African legislation protects wetland systems and riparian habitats from

developmental pressures by referring to wetland buffers.632 It is recognised that wetland

buffers have an important function in maintaining basic aquatic processes, reducing the

impacts made by adjacent and upstream water users, protecting wild habitat, and in

providing a number of supplementary societal benefits.633 In Mpumalanga the delineation

of riparian buffers has significantly improved water quality and mitigated the impacts of

mining activities.634

From the discussion in chapter 2 it is evident that the definition of buffer zones differs,

depending on the purpose thereof.635 "The width of a buffer depends greatly on what

resource you are trying to protect."636 Buffers around wetlands have only recently been

629 Marnewecke and Kotzé 1999 "Guidelines for delineation of wetland boundary and wetland zones" W6/2.

630 Cowardin et al 1979 in Breedt Understanding subterranean hydrology in the delineation of wetlands 4. 631 Marnewecke and Kotzé 1999 "Guidelines for delineation of wetland boundary and wetland zones"

W6/2. 632 500m buffer in GN R1199 and GN R509, 100m buffer in GN R704 and 32m buffer in GN R983 to 985.

NWRS2 37. Chapter 2 referred to boundaries or buffer zones around wetlands as means of protecting these ecosystems.

633 Macfarlane et al 2014 "Preliminary guideline for the determination of buffer zones for rivers, wetlands and estuaries." iii.


635 Macfarlane et al 2014 "Preliminary guideline for the determination of buffer zones for rivers, wetlands and estuaries." iii.

636 Hawes and Smith "Riparian Buffer Zones: Functions and Recommended Widths" 4.

108

defined637 on a scientific basis through reference to the wetland delineation.638. Prior to

this definition a 500 meter buffer was applied to the licensing of water uses impacting on

wetlands under section 21(c) and (i) of the NWA.639 This is still in contradiction of the

requirements of GN R704, which still includes a 100 meter arbitrary buffer, and of the

NEMA, which includes a 32 meter buffer for developmental activities.640 In addition, while

section 21(c) and (i) specifically refer to a "wetland from which water flows," the 500

meter buffer has been applied not only in respect of the flow regime of a wetland but

also the physical and ecological attributes of a wetland, thereby increasing the regulated

area.

Despite the importance of buffers zones, they are far from "the silver bullet that addresses

all water resource related problems."641 Buffer zones, for example, do not assist in

addressing the hydrological impacts arising from stream-flow reduction activities.642 What

is important is that water can be introduced to a wetland through direct rainfall, runoff,

channel flow and groundwater discharge.643 The 500 meter buffer644 was set in order to

protect the wetland connectivity and recharge. However, the area required to sustain

these functions might be larger, subject to the geohydrological, hydrological and spatial

connectivity of the wetlands, soil conditions and groundwater flow.645 Some activities

such as opencast coal mining may require buffers extending beyond the 500 meter mark

in order to prevent the destruction of the wetland.646 Therefore, whether a section 2(c)

and (i) water use is triggered should be decided by whether the water introduced to the

637 September 2016. Refer to table 3 for the definition of "extent of a watercourse" as included in GN R1180 and GN R509. The 500 meter radius buffer has been removed from the definition of a regulated area. As a scientifically delineated buffer has only recently been introduced, the scenario analysis in chapter 4 of this dissertation has focused only on the challenges faced prior to this introduction.

638 As per the DWS 2005 Practical Field Procedure for Delineation of Wetlands and Riparian Areas. Refer to section 2.4.3. The challenges experienced by the mining industry through the application of the DWS 2005 procedure fall outside the scope of this dissertation.

639 GN R1180. 640 Refer to table 5. 641 Macfarlane et al 2014 "Preliminary guideline for the determination of buffer zones for rivers, wetlands

and estuaries." iii. 642 Such as section 21(c) and (i) water uses related stream flow reduction in wetlands. Macfarlane et al

2014 "Preliminary guideline for the determination of buffer zones for rivers, wetlands and estuaries." iii.

643 Ingram, 1983 and Williams, 1990 in Stoop A framework methodology for the cumulative impact assessment of wetlands 31.

644 GN R1199. 645 Department of Water and Sanitation 2014 Guideline to regulate activities/ developments affecting

wetlands First edition Pretoria 33. 646 Department of Water and Sanitation 2014 Guideline to regulate activities/ developments affecting

wetlands First edition Pretoria 45.

109

wetland will be impeded, diverted or altered by the water use. However, as seen in the

scenario analysis in chapter 4, the buffer zones (especially the 500m buffer) are used to

define the water use, and not the impedance, diversion or alteration caused by the

activities.

5.4 Un/effective legislative framework?

As argued in chapter 3, various pieces of legislation govern the protection of wetlands in

South Africa’s mining industry. They can be characterised by their having had application

in three distinct timeframes, namely pre-1998,647 between 1998 and 2014,648 and post-

2014.649 During the analysis of the legislation and its application to scenarios within

Mpumalanga, the following challenges were identified:

(a) There is no uniform definition of a "wetland" in South African legislation.650

(b) There is no uniform definition of the "buffer of a wetland" in South African

legislation. Legislative requirements overlap or even contrast with one another, with

reference to buffer zones.651

(c) The legislative framework made limited or no provision at all for the governing of

the impacts of the mining industry on wetlands prior to 1998.652

(d) The Delineation Guideline of 2005 and the NFEPA maps has had the result that

areas previously delineated as non-wetland areas by land capability assessments

and authorised as such are now being delineated as wetlands. The legislative

framework does not include transitional arrangements to authorise activities that

occurred and are occurring in such areas, and a mine would in this context

immediately be in contravention of the legislation.653

647 1998 saw the promulgation of the NWA and the NEMA. 648 As of December 2014 the "One Environmental System" is being implemented. 649 Refer to table 4. 650 Refer to section 2.5. 651 Refer to section 2.5 652 Refer to sections 3.3 and 4.5. 653 Refer to sections 2.4.2 and 4.6.1.1.

110

(e) Therefore uncertainty exists as to the lawfulness of mining activities that lawfully

commenced prior to 1998 but are presently located within wetlands and their

associated buffers, as defined.654

(f) Mining activities occur over a long period of time, some spanning over the three

legislative timeframes discussed. The changes in legislation over the life of the mine

have resulted in uncertainty about the applicability of the legislation to the mining

activities, specifically activities impacting on wetlands.

(g) The application of the legislative buffer zones, specifically the 500 meter contained

in the general authorisation, is incorrect. The DWS requires that all activities located

within the 500 meter buffer zone, regardless of whether they impede, divert or alter

the wetland, are to be authorised merely on the location of the activity in relation

to the wetland.655

To address the above challenges the following recommendations are made:

(a) The definition of a "wetland" should be reviewed to be uniform for all legislation

governing the protection of these ecosystems.

(b) The definition should be based on the scientific understanding of the functioning of

wetlands and should ensure the protection of all these functions.

(c) In all relevant legislation the buffer zones are not to be arbitrarily determined but

are to be based on scientific delineation and a risk-based approach to the impact of

the mining activities on the delineated wetland. The implementation of a science-

based tool to replace the arbitrary buffer included in the South Africa legislative

framework will ensure better protection of these systems. It is proposed that such

a tool be included in the norms and standards or regulations to replace the arbitrary

buffer zones currently contained in the legislation.

(d) Legislative requirements should be clear on the authorisations required for mining

activities to commence and continue within the buffer zones defined. The amended

654 Refer to sections 4.6.1.1- 4.6.1.3. 655 Refer to section 4.7.1.1.

111

General Authorisation should provide relief in relation to the number of applications

required by the DWS and abbreviate the turnaround time for the approval of such.

112

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